Majority
— 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
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.
Cases cited
- Anderson v. Mt. Clemens Pottery Co. 328 US 680 at 686-687 p. 920
- D.D.G. General Contracting Corp. v. Hartnett 149 AD2d 819 at 820 p. 920
- John Schepanski Roofing & Gutters v. Roberts 133 AD2d 757 at 758 p. 920