Scharf Plumbing & Heating, Inc. v. Hartnett

Mercure, J. (dissenting).

Because it is my view that respondent’s finding of willful violation was supported by substantial evidence, I respectfully dissent and vote to confirm respondent’s determination.

A violation of Labor Law § 220 is willful if it is committed knowingly, intentionally or deliberately (see, Matter of CamFul Indus. [Roberts], 128 AD2d 1006). "No showing of intent to *423deprive the Government of its money is necessary but only something more than accidental nonpayment is required” (Matter of Levin v Gallman, 42 NY2d 32, 34 [citations omitted]; see, Matter of Cervini Car Wash v Adduci, 167 AD2d 309; Matter of Cam-Ful Indus. [Roberts], supra, at 1007). A finding of willful violation is supported by substantial evidence if it is shown that the contractor "knew or should have known that its actions violated the Labor Law” (Matter of Green Is. Constr. Co. v Roberts, 139 AD2d 907, 908; see, Matter of CamFul Indus. [Roberts] supra, at 1007) because of its prior experience on public works projects and its officers’ knowledge of the requirements of the prevailing wage law (see, Matter of Mid Hudson Pam Corp. v Hartnett, 156 AD2d 818, 821; Matter of Roze Assocs. v Department of Labor, 143 AD2d 510). Here the evidence established that petitioner had considerable experience in public works projects and was informed on the requirements of the prevailing wage law. Its project manager, also familiar with public work, was clearly aware that the employee was working on a public project and his knowledge may be imputed to petitioner (see, Matter of Roze Assocs. v Department of Labor, supra). Further, the testimony of petitioner’s principal supported a finding that the employee’s time card indicated the place where his work was performed, providing petitioner’s payroll clerk with actual knowledge of the fact that the work was performed on a public project and, as a consequence, the requirement that the prevailing wage be paid. Finally, petitioner has not demonstrated that the interest and penalty imposed by respondent are shocking to one’s sense of fairness (see, Matter of Hull-Hazard, Inc. v Roberts, 136 AD2d 872, 874, mod on other grounds 74 NY2d 710).

Adjudged that the determination is modified, without costs, by annulling so much thereof as imposed a $450 civil penalty against petitioner; matter remitted to respondent for further proceedings not inconsistent with this court’s decision; and, as so modified, confirmed.