N. Picco & Sons Contracting, Inc. v. Smith — 77 A.D.3d 668

Majority

p. 668

In the Matter of N. Picco and Sons Contracting, Inc., et al., Petitioners, v M. Patricia Smith, as Acting Commissioner of Labor of the State of New York, Respondent.

[908 NYS2d 367]

Proceeding pursuant to CPLR article 78 and Labor Law § 220 (8) to review a determination and order of the Acting

p. 669

Commissioner of the New York State Department of Labor dated August 11, 2009, which adopted the findings of fact, conclusions of law, and recommendations of a hearing officer, made after a hearing, inter alia, that the petitioner N. Picco and Sons Contracting, Inc., willfully failed to pay certain employees prevailing wages and supplements on four public works projects.

Adjudged that the proceeding is dismissed, with costs.

The petitioners commenced the instant proceeding more than 30 days after service upon them of the notice of the filing of the challenged determination and order in the office of the fiscal officer of the appropriate governmental entity, here, the Office of the Commissioner of the New York State Department of Labor. Under such circumstances, the proceeding is time-barred (see Labor Law § 220 [8]; Matter of Local 237, Intl. Bhd. of Teamsters v Comptroller of City of N.Y., 259 AD2d 314 [1999]; Bolovis v Polis Contr. Corp., 235 AD2d 323 , 323 [1997]; cf. CPLR 217 [1]; Matter of Edmead v McGuire, 67 NY2d 714 , 716 [1986]; Matter of Lion Constr. Corp. v New York State Dept. of Labor, 266 AD2d 394 , 394-395 [1999]), and must be dismissed.

In light of the foregoing, we need not reach the merits of the petitioners’ contentions. Mastro, J.P., Santucci, Roman and Sgroi, JJ., concur.

Cases cited

Edmead v. McGuire 67 NY2d 714 N.Y. 1986-02-11 at 716 p. 669
Lion Construction Corp. v. New York State Department of Labor 266 AD2d 394 N.Y. App. Div. 1999-11-15 at 394-395 p. 669

Statutes and regulations cited

Labor Law p. 669