Opinion
8316 Index 118/17
02-05-2019
In re ASTORIA GENERAL CONTRACTING CORP., et al., Petitioners, v. Scott STRINGER, etc., et al., Respondents.
Giaimo Associates, LLP, Manhasset (Joseph O. Giaimo of counsel), for petitioners. Zachary W. Carter, Corporation Counsel, New York (Scott Glotzer of counsel), for respondents.
Giaimo Associates, LLP, Manhasset (Joseph O. Giaimo of counsel), for petitioners.
Zachary W. Carter, Corporation Counsel, New York (Scott Glotzer of counsel), for respondents.
Friedman, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Determination of respondents, dated August 9, 2017, which, on remand from this Court's order entered in a prior proceeding, modified respondents' prior determination, dated September 2, 2015, insofar as recalculating the amount of unpaid wages owed to three employees, interest, and penalty, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, without costs.
Substantial evidence supports respondents' recalculation of the wages owed to three employees on remand from this Court's order in a prior original article 78 proceeding ( Matter of Astoria Gen. Contr. Corp. v. Stringer, 144 A.D.3d 603, 42 N.Y.S.3d 120 [1st Dept. 2016] ). Petitioners are collaterally estopped by this Court's prior order, which held that substantial evidence supported the findings that petitioners falsified payroll records and willfully failed to pay prevailing wages to the three employees (see id. at 603, 42 N.Y.S.3d 120 ), from challenging those findings in the instant proceeding (see generally Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499–500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ).
The five-year bar on petitioners' participation in any New York public work contract bidding was mandated by Labor Law § 220–b(3)(b)(1). The penalties are otherwise not shockingly disproportionate to the offenses (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] ).