National Building & Restoration Corp. v. McGowan

261 A.D.2d 879, 690 N.Y.S.2d 364, 1999 N.Y. App. Div. LEXIS 4917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1999
• Status: Published

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding to challenge a determination by respondent that petitioner willfully violated Labor Law § 220 by failing to pay two employees the prevailing wage and supplements on a public work construction project and willfully falsified its payroll records. The determination is supported by substantial evidence (see, Matter of Passucci Gen. Constr. Co. v Hudacs, 221 AD2d 987, 988, Iv denied 87 NY2d 811; cf., Fast Trak Structures v Hartnett, 181 AD2d 1013). Respondent concedes, however, that his audit incorrectly included amounts for Saturday work on five dates, incorrectly included an amount for straight time on another date, as well as wages for forklift work prior to November 8, 1993, and that the total amount of underpayments listed in the award is incorrect. Thus, we modify the determination by vacating the total amount of underpayments and confirm the determination insofar as it finds that petitioner willfully violated the prevailing wage law and willfully falsified its payroll records, and we remit this matter to respondent for recalculation of the total amount of underpayments.

Petitioner further contends that the hearing was not conducted expeditiously as required by Labor Law § 220 (8). Upon our review of the record, we conclude that there is no merit to that contention. (Original Proceeding Pursuant to CPLR art 78.) Present — Denman, P. J., Green, Pigott, Jr., Scudder and Callahan, JJ.