TPK Construction Co. v. Dillon ( 1999 )

—Order and determination of respondent Department of Labor, dated February 2, 1998, which, inter alia, confirmed a report and recommendation of a Hearing Officer, determined that petitioner TPK Construction Co. had failed to pay prevailing wages and supplements as required by Labor Law § 220 (3), determined that there had been an underpayment in the amount of $211,730.14, and determined that interest in the amount of 16% should be imposed on the amount of the underpayment, unanimously modified, on the law and the facts, the order and determination annulled and the petition, brought pursuant to CPLR article 78 and Labor Law § 220 (8) and § 220-b (2) (e), granted to the extent of vacating that part of the award which found that $211,730.14 was underpaid and finding instead that $207,475.06 was underpaid, and otherwise confirmed, without costs.

There was substantial evidence to support the conclusion that petitioner TPK had failed to pay prevailing wages and supplements as required by Labor Law § 220 (3). Moreover, petitioner concededly violated its obligation to register its apprentice workers. The methodology employed by the investigator, albeit imperfect, was necessitated by the absence of comprehensive payroll records from TPK (see, Matter of Alphonse Hotel Corp. v Sweeney, 251 AD2d 169). Nevertheless, inasmuch as the employee from the payroll department testified that the retroactive payment of $4,255.08 was for work performed on the Van Wyck project, and there was no evidence to the contrary, credit in that amount should have been awarded to TPK for that payment against the sums it had been found to have underpaid. Finally, we find no merit to TPK’s challenge to the imposition of interest on moneys withheld from payments due it pending the final determination of the complaint of unpaid wages (see, Matter of Gelco Bldrs. v Holtzman, 168 AD2d 232, 233, lv denied 77 NY2d 810; Labor Law § 220-b [2] [a], [b]).

Reargument granted and, upon reargument, the unpublished decision and order of this Court entered on May 27, 1999 (Appeal No. 1270) recalled and vacated, and new decision and order substituted therefor. Concur — Sullivan, J. P., Tom, Wallach, Lerner and Andrias, JJ.