IN RE: CHARAN ELECTRICAL ENTERPRISES (2025)

Determination of respondent Office of the Comptroller of the City of New York, dated September 26, 2023, which, after a hearing, found that petitioners violated the prevailing wage laws, willfully failed to pay prevailing wages and supplement benefits to two employees and deliberately falsified payroll records, and deemed them ineligible to bid on or be awarded any public work contract in New York state or any municipal contract within the state for a five-year period pursuant to Labor Law § 220–b, and directed payment of an assessment and penalty pursuant to Labor Law § 220(8), unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, Appellate Division, Third Department, entered December 21, 2023), dismissed, without costs.

Respondent's determination is supported by substantial evidence in the record (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978]).  Respondent had ample reason for crediting the testimony of the two complainants concerning the work they performed which qualified for prevailing wages, and petitioners failed to establish any basis to disturb respondent's credibility determinations (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987]).  There was also substantial evidence in the record to support the finding that petitioners willfully failed to pay prevailing wages (see Matter of Central City Roofing Co., Inc. v. Musolino, 136 A.D.3d 1186, 1187, 25 N.Y.S.3d 433 [3d Dept. 2016]).

In light of petitioners’ failure to maintain adequate records, respondent had a rational basis for calculating the underpayment based on the best available evidence, and petitioners failed to establish any basis to negate the reasonableness of the calculations (see Matter of Gelco Bldrs. v. Holtzman, 168 A.D.2d 232, 233, 562 N.Y.S.2d 120 [1st Dept. 1990], lv denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399 [1991]).

The five-year bar on petitioners’ participation in any public work contract bidding is mandated by the applicable statute (see Labor Law § 220–b[3][b][1];  see also Matter of Astoria Gen. Constr. Corp. v. Stringer, 169 A.D.3d 408, 409, 91 N.Y.S.3d 695 [1st Dept. 2019]).  In any event, the penalties and sanction imposed do not shock the conscience and are not disproportionate to the offenses.