Pascazi v. Gardner, 106 A.D.3d 1143

Rose, J. reviews CPLR article 78 determinations under Labor Law § 220 finding petitioner Fiber Optek Interconnect Corp, of which he is president and 50% owner, had willfully violated prevailing wage laws on public works projects.
Fiber Optek was investigated after employee complaints and faced charges for failing to pay prevailing wages on the Edwin Gould Academy-Ramapo Union Free School District project and eight other public works projects.
Two determinations found willful violations; respondent adopted the findings; petitioner challenged the determinations in this CPLR article 78 proceeding.
Petitioner argued the prevailing wage law is preempted by the federal Telecommunications Act and Labor Management Relations Act and that interest on underpayments should be stricken due to delay.
Record evidence showed discrepancies between certified payroll records and employees’ testimony, supporting findings that some payroll records were falsified; Edwin Gould Academy-Ramapo and Indian Point were found to be public entities under the law.
Court resolves preemption issues, interest issues, and merits, upholding the determinations without costs and dismissing the petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preemption by federal law	Fiber Optek argues Telecommunications Act preempts state wage rules.	Respondent contends prevailing wage law is not preempted and falls within safe harbor.	No preemption; prevailing wage law survives under safe harbor.
LMRA preemption and independence of wage rights	LMRA preempts state wage standards tied to collective bargaining.	Wage rights are independent of CBA provisions; not preempted.	Not preempted; wage rights independent of CBAs.
Interest on underpayments	Interest should be stricken due to delay and scheduling issues.	Delay was partly due to petitioner’s record-keeping and other factors; interest proper.	Interest upheld; delay not attributable to unreasonableness by DOL.
Merits: falsified payroll records	Certified payrolls were falsified based on discrepancies with employee testimony and other records.	Discrepancies show violations; still appropriate to enforce wage law.	Evidence supports findings of willful violations and falsified payrolls.
Public vs private entity status of projects	Edwin Gould Academy-Ramapo and Indian Point are public entities for prevailing wage purposes.	Ownership transfers complicate public status; contract work conducted for public entities.	Edwin Gould Academy-Ramapo and Indian Point work properly attributed to public agencies.

Sprietsma v. Mercury Marine, 537 U.S. 51 (U.S. 2002) (preemption analysis framework)
Balbuena v IDR Realty LLC, 6 N.Y.3d 338 (N.Y. 2006) (strong presumption against preemption in occupational safety)
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (U.S. 1985) (labor standards and state authority; public interest considerations)
Rice v Santa Fe Elevator Corp., 331 U.S. 218 (U.S. 1947) (preemption and field regulation considerations)
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (U.S. 1992) (preemption and implied conflicts)
Rondout Elec., Inc. v. NYS Dept. of Labor, 335 F.3d 162 (2d Cir. 2003) (federal preemption and labor standards)
Matter of Senior Care Servs., Inc. v New York State Dept. of Health, 46 A.D.3d 962 (4th Dep’t 2007) (state wage enforcement and public health context)
Hunter v Warren County Bd. of Supervisors, 21 A.D.3d 622 (3d Dep’t 2005) (dormant Commerce Clause considerations)
D & D Mason Contrs., Inc. v Smith, 81 A.D.3d 943 (2d Dep’t 2011) (delay attributed to agency actions and scheduling)
A. Uliano & Son. v New York State Dept. of Labor, 97 A.D.3d 664 (3d Dep’t 2012) (evidence of payroll record discrepancies)
Alca Indus. v McGowan, 258 A.D.2d 704 (4th Dep’t 1999) (administrative determinations and wage issues)