Pav-Lak Contracting, Inc. v. New York State Department of Labor

—In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the New York State Department of Labor to remove a notice of cross-withholding directing Port Jefferson Union Free School District to withhold funds owed to the petitioner, the petitioner appeals from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), dated March 16, 2000, as denied that branch of its petition which was to compel the New York State Department of Labor to remove the notice. Ordered that on the Court’s own motion, the petitioner’s notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further, Ordered that the order is affirmed insofar as appealed from, with costs. [512] The New York State Department of Labor (hereinafter the Department) issued a notice of cross-withholding directing Port Jefferson Union Free School District to withhold funds owed to the petitioner for work completed on a public works project. The notice was based on an alleged underpayment of wages by one of the petitioner’s subcontractors on a prior project. Although the Department did not expeditiously hold a hearing pursuant to Labor Law § 220-b (2), this failure does not, without more, automatically entitle the petitioner to a removal of the notice (see, Matter of Nalews, Inc. v New York State Envtl. Facilities Corp., 79 AD2d 829). The petitioner’s remaining contentions are without merit. Friedmann, J. P., Florio, Smith and Cozier, JJ., concur.