Opinion
09-29-2017
In the Matter of BOB BRUNO EXCAVATING, INC., and Robert Bruno, as Shareholder of Bob Bruno Excavating, Inc., Petitioners, v. Roberta REARDON, Commissioner of Labor, State of New York, respondent.
Camardo Law Firm, P.C., Auburn (Benjamin M. Kopp of Counsel), for petitioners. Eric T. Schneiderman, Attorney General, Albany (Seth Kupferberg of Counsel), for respondent.
Camardo Law Firm, P.C., Auburn (Benjamin M. Kopp of Counsel), for petitioners.
Eric T. Schneiderman, Attorney General, Albany (Seth Kupferberg of Counsel), for respondent.
MEMORANDUM:
Petitioners commenced this CPLR article 78 proceeding, initiated in this Court pursuant to Labor Law § 220(8), seeking to annul a determination of respondent that, inter alia, found that petitioners had underpaid their workers on certain public works projects for the City of Auburn. We conclude that the petition must be dismissed. There is no dispute that respondent's determination was made upon petitioners' default, and it is well settled that a petitioner "is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination" ( Matter of Brisbon v. New York City Hous. Auth. , 133 A.D.3d 746, 747, 19 N.Y.S.3d 578 [internal quotation marks omitted]; see Matter of Matsos Contr. Corp. v. New York State Dept. of Labor , 80 A.D.3d 924, 925, 914 N.Y.S.2d 445 ; see also CPLR 5511 ). The proper remedy for petitioners is to make an application to respondent to reopen the administrative hearing and/or vacate the default (see Interboro Mgt. Co. v. State Div. of Human Rights , 139 A.D.2d 697, 698, 527 N.Y.S.2d 453 ). We note that it appears from the parties' submissions to this Court that petitioners have made such an application and that respondent's determination thereon is currently pending. In the event that respondent denies the application, petitioners may commence a new CPLR article 78 proceeding to challenge that denial (see generally Matter of Yarbough v. Franco , 95 N.Y.2d 342, 347, 717 N.Y.S.2d 79, 740 N.E.2d 224 ; Matter of Tony's Towing Serv., Inc. v. Swarts , 109 A.D.3d 475, 476, 970 N.Y.S.2d 274 ). At this stage of the litigation, however, the petition must be dismissed (see Matsos Contr. Corp. , 80 A.D.3d at 925–926, 914 N.Y.S.2d 445 ; see also Brisbon, 133 A.D.3d at 747, 19 N.Y.S.3d 578 ; Matter of Brooks v. New York City Hous. Auth. , 58 A.D.3d 836, 837–838, 873 N.Y.S.2d 104 ).
It is hereby ORDERED that said petition is unanimously dismissed without costs. CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, and WINSLOW, JJ., concur.