Opinion
October 19, 1987
Adjudged that the petitions are granted and the order and determination is annulled, on the law, with costs, and the matters are remitted to the respondent for further proceedings consistent herewith.
While there is substantial evidence on this record supporting the respondent's determination that Schepanski willfully failed to pay prevailing wages and supplements and to keep proper records, the method of computation employed by the respondent was not rationally justified. Specifically, the respondent's determination failed to credit Schepanski for making any payments to his workers even though some such payments were unequivocally made. It also computed the last day of work as being September 15, 1983, even though the record indicates that the last day actually was September 8, 1983. Finally, there was no rational basis for inferring that whenever the inspector's report indicated that any workers were doing work on the project, that all of the 19 workers were present, even when the inspector's report specifically indicated that a lesser number of workers were present.
Although the assessment of underpaid wages and supplements may only be approximate in a case such as this, where the employer has failed to keep proper records, the approximation must at least have some rational basis (cf., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-687, reh denied 329 U.S. 822; Brock v. Seto, 790 F.2d 1446, 1448-1449). In this case, the assessment by the respondent is without rational support, and these matters must be remitted for a reassessment of underpaid wages and supplements owed by Schepanski (see, Matter of Dadson Plumbing Corp. v. Goldin, 66 N.Y.2d 713, 714; Matter of Moss Elec. Air Conditioning Corp. v. Goldin, 120 A.D.2d 409; Matter of Sewer Envtl. Contrs. v. Goldin, 98 A.D.2d 606).
While the imposition of a civil penalty was justified by the evidence that Schepanski's failure to pay prevailing wages and supplements was willful (cf., Matter of C.E.L. Lbr. v. Roberts, 109 A.D.2d 1002, 1003), the amount of that penalty must be reconsidered in light of the reassessment of underpaid wages and supplements. Kunzeman, J.P., Kooper, Spatt and Sullivan, JJ., concur.