Opinion
June 23, 1986
Appeal from the Supreme Court, Nassau County (Harwood, J.).
Judgment modified, on the law, by deleting the provision thereof which dismissed that branch of the petition which was addressed to the determination dated November 21, 1984, and substituting therefor a provision granting that branch of the petition to the extent that that determination debarring the petitioner from bidding on or being awarded public works contracts within the State of New York for a period of five years is annulled. As so modified, judgment affirmed, without costs or disbursements.
Under Labor Law § 220-b (3) (b), a corporation may be debarred for a period of five years from bidding on or being awarded a public works contract within the State of New York if on "two instances", final determinations have been rendered against it finding that it willfully failed to pay the prevailing rate of wages or provide supplements in accordance with prevailing practices in the locality to workers employed on a public works project in violation of Labor Law § 220 (3).
The Court of Appeals had recently held that Labor Law § 220-b (3) (b) "clearly requires one final determination prior to the second final determination so as to establish knowing repetition as the predicate for a five-year suspension from bidding" (Matter of Dadson Plumbing Corp. v. Goldin, 66 N.Y.2d 713, 715; emphasis supplied). Thus, where it is simultaneously determined that a corporation committed violations on multiple public works contracts, no "knowing repetition" is established, and debarment may not occur. In this case, while there were determinations that the petitioner violated the prevailing wage laws by underpaying its workers on two separate public works projects, these determinations were simultaneously rendered, and the subsequent debarment of the petitioner was therefore improper. The petitioner further contends that the respondent abused her discretion in imposing penalties and awarding a rate of interest of 10% per annum on the amounts due to the underpaid employees. Although the petitioner had notice that the issues of whether to impose penalties and interest were to be determined by the hearing officer, it voluntarily opted not to appear at the hearings. Moreover, it did not raise the present contention before Special Term, and we therefore decline to consider it for the first time on appeal (see, Moise v. Christian, 97 A.D.2d 536, 537). Lazer, J.P., Mangano, Lawrence and Eiber, JJ., concur.