Cayuga-Onondaga Counties Board of Cooperative Educational Services v. Sweeney

Majority

p. 989

In the Matter of Cayuga-Onondaga Counties Board of Cooperative Educational Services, Petitioner, v John E. Sweeney, as Commissioner of Labor of State of New York, et al., Respondents.

[637 NYS2d 834]

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Because this proceeding was instituted to vindicate a public interest, respondent was not required to file a notice of claim pursuant to Education Law § 3813 (1) (see, Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371 , 379-380, rearg denied 36 NY2d 807 ; Board of Educ. v Board of Educ., 174 AD2d 704 , 705). Respondent may on his own initiative cause a compliance investigation to be made (see, Labor Law § 220 [7]; Matter of Sierra Telecom Servs. v Hartnett, 174 AD2d 279 , 284, appeal dismissed 79 NY2d 1039 , cert denied 507 US 972 ). The proceeding was timely commenced (see, Education Law § 3813 [2-b]). The requirement that an order or determination be made within six months from the date the compliance investigation is initiated (see, Labor Law § 220 [7]) is directory, not mandatory (see, Guercio v Gerosa, 8 AD2d 250 , 255, affd 8 NY2d 1104 ) and the lapse of time in rendering an administrative determination, standing alone, does not constitute prejudice as a matter of law (see, Matter of Harris & Assocs. v deLeon, 84 NY2d 698 , 702; Matter of Corning Glass Works v Ovsanik, 84 NY2d 619 , 623-624). The record does not support petitioner’s contention that the employees on the proj

p. 990

ect were classified and graded civil service employees. Thus, those employees are entitled to the prevailing wage rate (see, Matter of Tenalp Constr. Corp. v Roberts, 141 AD2d 81 , 85; cf., Matter of Buffalo Bldg. Trades Council v Board of Educ., 36 NY2d 782 , 783). Finally, the record supports respondent’s determination that the work involved was part of a public work project subject to the requirements of Labor Law § 220. (Original Proceeding Pursuant to Labor Law § 220.) Present — Green, J. P., Pine, Fallon, Callahan and Davis, JJ.

Cases cited

Union Free School District No. 6 v. New York State Human Rights Appeal Board 35 NY2d 371 N.Y. 1974-11-21 at 379-380 p. 989
Siera Telcom Services, Inc. v. Hartnett 174 AD2d 279 N.Y. App. Div. 1992-01-30 at 284 p. 989
Waszkielewicz v. City of Buffalo 79 NY2d 1039 N.Y. 1992-05-12 p. 989
Phelan v. Local 305 of United Ass'n of Journeymen & Apprentices of United States & Canada 507 US 972 SCOTUS 1993-03-08 p. 989
Guercio v. Gerosa 8 AD2d 250 N.Y. App. Div. 1959-06-04 at 255 p. 989
Guercio v. Gerosa 8 NY2d 1104 N.Y. 1960-11-17 p. 989
Louis Harris & Associates, Inc. v. deLeon 84 NY2d 698 N.Y. 1994-12-13 at 702 p. 989
Corning Glass Works v. Ovsanik 84 NY2d 619 N.Y. 1994-12-13 at 623-624 p. 989
Tenalp Construction Corp. v. Roberts 141 AD2d 81 N.Y. App. Div. 1988-09-26 at 85 p. 990
Buffalo Building Trades Council of the Buffalo Board of Education Employees v. Board of Education 36 NY2d 782 N.Y. 1975-04-01 at 783 p. 990

Statutes and regulations cited

Labor Law p. 989, p. 990