International Fidelity Insurance v. Sweeney

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Commissioner of the New York State Department of Labor, dated February 20, 1997, which, after a hearing, found that the petitioner, as surety on the labor and material payment bond on two public improvement contracts between the Dormitory Authority of the State of New York and Pak American Construction and Mechanical Company, was “obligated and liable for any and all remaining balances due and owing” for the willful violation by Pak American Construction and Mechanical Company of Labor Law § 220 et seq., in failing to pay prevailing wages to six of its employees, and fixed the total violation in the principal sum of $183,364.28, plus interest in the amount of 16% and a civil penalty in the amount of 25%. Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as provided that the petitioner was “obligated and liable for any and all remaining balances due and owing” for the willful violation by Pak American Construction and Mechanical Company of Labor Law § 220 et seq., is annulled, the petition is denied in all other respects, the determination is otherwise confirmed, and the proceeding is otherwise dismissed. The Commissioner erred in determining that the petitioner was responsible for the contractor’s underpayments, interest, and the civil penalty (see, Labor Law § 220 [8]; § 220-g; compare, Labor Law § 223). The petitioner’s remaining contentions are not properly before us, as they were not raised at the administrative hearing (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter [390] of Asbestos Indus.v New York State Dept. of Labor, 224 AD2d 414; Matter of International Fid. Ins. Co. v Hartnett, 199 AD2d 1084). Mangano, P. J., Joy, Altman and Luciano, JJ., concur.