T.F. Judson Jr. Co. v. Hartnett

177 A.D.2d 940, 579 N.Y.S.2d 914, 1991 N.Y. App. Div. LEXIS 15662

Opinion

Determination unanimously modified on the law and as modified confirmed without costs, in accordance with the following Memorandum: We find that the Commissioner’s determination that petitioner failed to pay its employee the prevailing wage pursuant to Labor Law § 220 (3) is supported by substantial evidence (see generally, Matter of Berenhaus v Ward, 70 NY2d 436, 443). The determination that the violation was willful, however, is not supported by substantial evidence and thus, that determination must be annulled and the civil penalty imposed thereon vacated. The findings that petitioner was an experienced public work contractor and that petitioner failed to pay its employee the correct amount after it had been advised by the Department of Labor to do so are unsupported by the record (see, Matter of Green Is. Constr. Co. v Roberts, 139 AD2d 907, 908; Gross Plumbing & Heating Co. v Department of Labor, 133 AD2d 524). (Original Proceeding Pursuant to Labor Law § 220.) Present—Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.