Opinion
July 22, 1991
Adjudged that the petition is granted, on the law, to the extent of annulling (1) the provision awarding interest in the sum of $137,800.45, and (2) the provision awarding post-determination interest at the rate of 16% per annum, the determination is otherwise confirmed, and the proceeding is otherwise dismissed, without costs or disbursements, and the matter is remitted to the respondent Comptroller of the City of New York to recompute the amount of interest in accordance herewith.
Labor Law § 220 (8) provides that an order of the appropriate "fiscal officer" directing "payment of wages or supplements * * * found to be due", shall include interest. The record indicates that the then Comptroller of the City of New York in his "Order and Determination", adopted the Hearing Examiner's conclusion that Labor Law § 220 (8) "requires the assessment of interest, at the rate prescribed by the superintendent of banks, pursuant to Section 14-a Banking of the Banking Law, from the date of underpayment to the date of payment [and] [t]he rate so prescribed is 16%". In so concluding, the Comptroller was apparently relying on Labor Law § 220 (8) as amended by the Legislature in 1985 (see, L 1985, ch 137). However, that amendment was only effective as to public works contracts sent out to bid "on or after" January 1, 1986 (L 1985, ch 137, § 11). It is undisputed that the instant contract was sent out to bid on or about May 14, 1985. Moreover, prior to its amendment in 1985, Labor Law § 220 (8) provided that (1) interest would be at "a rate not less than six per centum per year and not more than the rate of interest then in effect as prescribed by the superintendent of banks pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment" (Labor Law former § 220 [8]), and (2) in determining the rate of interest to be imposed the "fiscal officer shall consider the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non wage-requirements" (Labor Law former § 220 [8]). Accordingly, the matter must be remitted to the Comptroller to recompute the amount of interest owed in accordance with the former statutory guidelines.
With respect to the petitioner's remaining arguments, we note that, with but one exception, they are unpreserved for our review since they were not raised before the Comptroller (see, Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 834, amended on other grounds 74 N.Y.2d 942; Matter of Hennekens v State Tax Commn., 114 A.D.2d 599, 600), and are, in any event, without merit (see, Matter of Tap Elec. Contr. Serv. v Hartnett, 156 A.D.2d 612, 613-614, mod on other grounds 76 N.Y.2d 164; Matter of Taj Airconditioning Refrig. Co. v Goldin, 158 A.D.2d 350, 351). Mangano, P.J., Bracken, Lawrence and Miller, JJ., concur.