International Fidelity Insurance v. Hartnett , 607 N.Y.S.2d 753 ( 1993 )

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner, the surety on the performance and the labor and material payment bonds on this public improvement contract between the Dormitory Authority of the State of New York (Authority) and Berlin Wrecking, Ltd. (Berlin), commenced this CPLR article 78 proceeding pursuant to Labor Law §§220 and 220-b to review a determination of respondent that Berlin willfully failed to pay prevailing wages and supplements. Respondent determined that Berlin underpaid 42 of its employees in the amount of $442,713.10 for those items. Respondent also assessed Berlin a civil penalty of $110,668, representing 25% of the underpaid wages and supplements. Petitioner does not challenge respondent’s determination regarding the amount of the underpayments or that Berlin willfully violated article 8 of the Labor Law. Instead, petitioner, who did not appear at the hearing held pursuant to Labor Law § 220-b, asserts that it is entitled to the monies withheld by the Authority.

Petitioner erroneously seeks to use this CPLR article 78 proceeding as a vehicle to determine the priority of the claims to the monies withheld by the Authority under the contract. Those issues were not raised at the administrative hearing. The scope of a CPLR article 78 proceeding, following an administrative hearing, is limited to review of the issues raised and addressed in that hearing (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834; Fireman’s Fund Ins. Co. v Corcoran, 156 AD2d 167, 170). Moreover, there is no merit to petitioner’s contention that respondent exceeded his jurisdiction in directing the Authority to issue a check for distribution to the underpaid workers "from the monies currently being withheld by the Authority on the contract” inasmuch as that action is authorized by Labor Law § 220-b (2) (e). (Original Article 78 Proceeding.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.