Opinion
February 28, 1994
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The record supports the Department of Labor's determination that the petitioner underpaid its workers. Further, the Department of Labor's calculation of underpayment is supported by substantial evidence. The law is well settled that when there is conflicting testimony and questions of credibility, the reviewing court may not weigh the evidence or reject the administrative agency's determination of credibility (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444; Matter of Sierra Telcom Servs. v. Hartnett, 174 A.D.2d 279, cert denied ___ US ___, 113 S Ct 1413). Therefore, we find no basis for disturbing the Department of Labor's credibility determinations or the inferences which it drew from the testimony and other evidence presented at the hearing.
We also find the petitioner's contention that the workers should have been classified as "improvers" rather than "insulation/asbestos workers" to be untimely. The time to challenge classifications in the prevailing wage rate schedule is within four months of receipt of the schedule (see, CPLR 217; Matter of Tru-Temp Indus. Insulation Co. v. Hartnett, 155 A.D.2d 820, 822; Matter of North Country Installers v. Commissioner of Labor for State of N.Y., 135 A.D.2d 1039, 1041). Having failed to challenge the schedule in a timely fashion, our review is limited to whether the Department of Labor's determination of underpayment is supported by substantial evidence. Bracken, J.P., O'Brien, Copertino and Hart, JJ., concur.