Office of the Comptroller v. Colonial Roofing Company, Inc. OATH Index No. 632/13, mem. dec. (Feb. 19, 2013)

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1 Office of the Comptroller v. Colonial Roofing Company, Inc. OATH Index No. 632/13, mem. dec. (Feb. 19, 2013) In prevailing wage case, contractor sought summary judgment dismissing petition due to delay in filing petition with OATH. Administrative law judge denied the motion holding that the contractor had failed to establish that going forward with the scheduled hearing would violate due process. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of OFFICE OF THE COMPTROLLER Petitioner - against - COLONIAL ROOFING COMPANY, INC., VEAP SELA, ADRIANA SELA, AND KATHLEEN SELA Respondents MEMORANDUM DECISION JOHN B. SPOONER, Administrative Law Judge This is a prevailing wage proceeding brought by petitioner, the Office of the Comptroller, pursuant to section 220(8) of the Labor Law and Title 44, Chapter 2 of the Rules of the City of New York. The petition, filed on October 1, 2012, alleges that respondent Colonial Roofing Company, Inc. willfully violated the law by failing to pay prevailing wages and benefits on a contract with the Manhattan and Bronx Surface Transit Operating Authority ( MBSTOA ) for roof repair to several bus depots. Respondents Veap, Adriana, and Kathleen Sela are the officers and principal shareholders of Colonial. An answer was filed on October 20, 2012, denying most of the allegations and asserting various affirmative defenses, including laches and the statute of limitations. In an amended petition, filed on October 25, 2012, petitioner adds a claim alleging that Colonial also failed to pay prevailing wages and benefits on roof repair work under a contract with the New York City Transit Authority.

2 -2- On January 16, 2013, respondents filed a motion for summary judgment arguing that the petition should be dismissed due to the delay between the work performed and the filing of the petition. Petitioner filed opposition papers on February 5, After a conference call on January 18, 2013, during which respondents attorney sought additional time in order to conduct discovery and prepare for the hearing, the trial dates of February 11 through 15, 2013, were adjourned. The case is currently set for trial on March 12, 13, 14, 15, and 18, For the reasons provided below, respondents motion for summary judgment must be denied. ANALYSIS As described in both parties papers, the prevailing wage violations alleged in this case involve two contracts, one with the MBSTOA for roof repair work to the Amsterdam Bus Depot from May 2003 to March 2005 and one with the Transit Authority for roof repair work to various bus depots from December 2004 to September In their memorandum of law, respondents seek summary judgment dismissing the petition on the grounds that the alleged violations occurred over nine years before the petition and amended petition were filed in October Respondents contend that forcing them to defend against these prevailing wage violations after such a significant passage of time is unfair and in violation of a number of their statutory and constitutional rights. A party seeking summary judgment has a considerable burden of establishing both the absence of factual disputes and the inevitability of its legal position. The Court of Appeals has stated, [t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985); see Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Tankard v. Abate, 213 A.D.2d 320 (1st Dep t 1995). The burden is greater in an administrative proceeding where the administrative judge makes recommended findings and the final decision rests with the referring agency. Matter of Tenants of West 28th Street, OATH Index No. 2877/09, mem. dec. at 2-3 (June 26, 2009), adopted, Loft Bd. Order No (June 17, 2010).

3 -3- Respondents motion asserts that the delay between the work done and the scheduling of the OATH hearing mandates summary judgment under a number of overlapping legal theories. First, respondents attorney contends that a ten-year delay in commencing proceedings must be found to be unreasonable under the New York State Administrative Procedure Act, which provides that [in] an adjudicatory proceeding, all parties shall be afforded an opportunity for hearing within a reasonable time. State Administrative Procedure Act 301 (1). 1 In this regard, respondents contend that they have been prejudiced in two ways. The primary prejudice identified by respondents is the statement from Veap Sela that, in December 2011, Colonial settled outstanding claims against the New York School Construction Authority for the sum of $162,319 and was soon thereafter dissolved by the Selas. Respondents assert that, had they known the instant claims might be asserted, Colonial would not have agreed to the settlement with the SCA and would have taken the SCA claims to trial in an effort to receive a better recovery, or Colonial and the plaintiffs in the other lawsuits would have agreed with the Comptroller s office to accept a portion of the SCA settlement sums. Mr. Sela also states that he believes that, in addition to the two boxes of records in his possession, additional files may exist. In his memorandum of law, respondents attorney contends that respondents do not have all of the project files and documents and do not have the payroll records regarding contributions to the Boon Group. Respondents assertions of unreasonable prejudice in defending the prevailing wage claims here are unconvincing. As to the prior settlement, in 2011, when Colonial settled with the School Construction Authority, it was aware of the ongoing Comptroller investigation into the Amsterdam Bus Depot project and of the possibility that further proceedings might occur. Petitioner suggests that Colonial also should have been aware of the Department of Investigation review of the other construction projects under the contract with the Transit Authority. The possibility that Colonial or the Selas might have made different financial choices had they known with certainty that the Comptroller s investigation would result in allegations of prevailing wage violations is, at best, speculative and does not establish unreasonable prejudice as to a hearing. Furthermore, the fact that five days have been reserved for trial and that at least two boxes of records are in the possession of respondents by their own admission suggests that 1 The City Administrative Procedure Act, which governs proceedings before this tribunal, has an identical provision. Charter 1046 (c) (1).

4 -4- respondents complaints about lost records and absent witnesses are exaggerated. It would appear that considerable evidence is available to both sides to demonstrate whether the allegations in the petition are accurate. Respondents attorney refers to only one court case for the proposition that the delay was unreasonable and should result in dismissal. In Sharma v. Sobol, 188 A.D.2d 833 (3d Dep t 1992), a doctor s license was revoked based upon six charges of misconduct brought by the State Board some four years after the incident occurred. On appeal, two of the charges based upon coercive statements allegedly made by the doctor to his nurse were dismissed due to the vagueness and uncertainty of the nurse s testimony, with the Court observing, a charge or claim based upon an actor s statement must be supported by reasonably certain proof of the words actually spoken. 188 A.D.2d at 835. Far from standing for the general proposition that a fouryear delay is inherently unreasonable and warrants dismissal, this case suggests only that such delay may be a critical factor in assessing witness credibility after a hearing has taken place. Respondents further assert that petitioner s delay violated both the procedural and substantive due process guarantees of the United States and New York Constitutions. Without citation to specific authority, respondents argue broadly that procedural due process is violated if a governmental entity can inexplicably sit on its hands for years and years and delay in commencing a hearing without some reasonable deadline. Similarly, respondents contend that substantive due process would be violated if a hearing were to be held because fact-findings will become farcical based on absence of job and records and/or memories from ten (10) years ago. While taking responsibility for much of the delay which has occurred, petitioner asserts that any prejudice is minimal because respondents were placed upon relatively prompt notice that the two jobs at issue here were being investigated by the City. Thus, petitioner contends that neither summary judgment nor dismissal are appropriate. While petitioner is certainly not to be lauded for its largely unexplained delay in bringing this case to a hearing, there is no merit to respondents contention that the belated hearing will violate due process so as to warrant a prehearing dismissal of the petition. As pointed out by petitioner s attorney, Labor Law section 220 requires only that investigations of worker complaints begin within three years of the work performed and contains no express statute of limitations as to the scheduling of hearings. The six-month time frame set forth in section 220(7) of the New York Labor Law for the

5 -5- disposition of a prevailing wage complaint has been held to be directory not mandatory, Nelson s Lamp Lighters, Inc. v. N.Y.S. Dep t of Labor, 267 A.D.2d 937, 938 (4 th Dep t 1999), and prevailing wage investigations lasting years have not been found to violate due process under the United States or New York Constitutions. M. Passucci Gen. Constr. Co. v. Hudacs, 221 A.D.2d 987, 988 (4th Dep't 1995) (three-year delay in holding hearing held not to violate due process); see also Housing Opportunities Made Equal, Inc. v. Pataki, 277 A.D.2d 888, 889 (4 th Dep t. 2000) (absent showing of "substantial actual prejudice," delay in conducting hearing held not to violate due process). Finally, respondents assert that the petition should be dismissed against the three individual respondents because insufficient facts are alleged to hold them liable for the prevailing wage violations. As pointed out by petitioner s attorney, there is, in fact, a legal basis, under Labor Law section 220-b(3)(b)(1), for disqualifying officers and certain shareholders from bidding on future public contracts and, under section 220-b(2)(g), for forcing these individuals to compensate workers if a determination of violation is made. See Office of the Comptroller v. Abbey Painting, Corp., OATH Index No. 2544/11 at (June 26, 2012), adopted, Comptroller Dec. (July 2, 2012) (holding a contractor s owner and president liable for underpayment and barring him from bidding on future public works for five years). There is thus no basis to dismiss the individual respondents prior to the upcoming hearing. In sum, respondents motion demonstrates, at most, that the age of the wage claims will make it more difficult for both petitioner and respondents to litigate the factual issues in the case as to the type of work performed and whether certain benefits were paid. These are not grounds to dismiss the petition prior to the hearing. If the hearing record establishes actual prejudice to respondents caused by petitioner s delay, respondents may again seek dismissal of all or some of the violations at the close of the hearing. For all of these reasons, respondents motion for summary judgment must be denied. John B. Spooner Administrative Law Judge February 19, 2013

6 -6- APPEARANCES: DEBORAH E. SEIDENBERG, ESQ. Attorney for Petitioner KING & KING, LLP Attorneys for Respondents BY: PETER KUTIL, ESQ.

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