Prestige Roofing & Siding Co. v. Hartnett

175 A.D.2d 919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 26, 1991
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Labor of the State of New York, dated July 31, 1989, which, after a hearing, inter alia, found that the petitioner was liable pursuant to Labor Law § 220 (3), for underpayments in the amount of $77,809.50, plus interest calculated at 10% per annum, incurred pursuant to Labor Law § 220 in connection with roofing work performed in 1983, and levied a civil penalty of $11,671.42, representing 15% of the total underpayments.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The record reveals that the respondent’s investigator offered a rational explanation of how he arrived at the underpayment calculations, and that these calculations were based upon substantial evidence (see, Anderson v Mount Clements Pottery Co., 328 US 680, 686-687; Brock v Seto, 790 F2d 1446, 1448-1449; Matter of D.D.G. Gen. Contr. Corp. v Hartnett, 149 AD2d 819, 820; Matter of Schepanski Roofing & Gutters v Roberts, 133 AD2d 757, 758). The mere fact that the underpayment calculations were at best an approximation, due to the failure of John Schepanski Roofing & Gutters, the petitioner’s subcontractor, to keep proper records pursuant to Labor Law § 220 (3-a) (a), does not call for a different conclusion (see, Matter of D.D.G. Gen. Contr. Corp. v Hartnett, supra, at 820; Matter of Schepanski Roofing & Gutters v Roberts, supra, at 758). Fiber, J. P., Rosenblatt, Miller and Ritter, JJ., concur.