In the Matter of Hull-Hazard, Inc., et al., Respondents,
v.
Lillian Roberts, as Commissioner of Labor, Appellant, and Upstate New York Council of Operating Engineers, Intervenor-Respondent.
Court of Appeals of the State of New York.
Decided June 15, 1989.Robert Abrams, Attorney-General (Jane Lauer Barker of counsel), for appellant.
Verne F. O'Dell for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*711MEMORANDUM.
The judgment of the Appellate Division should be modified by reversing so much thereof as annulled respondent's determination of willfulness and, as so modified, affirmed.
The overtime pay policy of petitioner Hull Corporation (Hull) is identical to that policy previously ruled unlawful by respondent Commissioner of Labor in another administrative proceeding to which Hull was a party (see, Matter of Hull-Hazard, Inc. v Roberts, 72 N.Y.2d 900, affg for the reasons stated below 129 AD2d 348 [Hull-Hazard I]). Thus, Hull cannot claim it was ignorant of the agency's view regarding the meaning of the overtime pay provision contained in Labor Law § 220 (2). That respondent's determination in this case was handed down prior to the decision of the Appellate Division in Hull-Hazard I is of no consequence. In adhering to its own contrary interpretation and placing itself in direct conflict with the agency position, Hull willfully violated the overtime pay provision of the Labor Law (see, Matter of Loll [Ross], 57 N.Y.2d 116, 127; Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 55).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.