Opinion
Decided June 15, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Robert Abrams, Attorney-General (Jane Lauer Barker of counsel), for appellant.
Verne F. O'Dell for respondent.
MEMORANDUM.
The judgment of the Appellate Division should be modified by reversing so much thereof as annulled respondent's determination of willfulness and, as so modified, affirmed.
The overtime pay policy of petitioner Hull Corporation (Hull) is identical to that policy previously ruled unlawful by respondent Commissioner of Labor in another administrative proceeding to which Hull was a party (see, Matter of Hull-Hazard, Inc. v Roberts, 72 N.Y.2d 900, affg for the reasons stated below 129 A.D.2d 348 [Hull-Hazard I]). Thus, Hull cannot claim it was ignorant of the agency's view regarding the meaning of the overtime pay provision contained in Labor Law § 220 (2). That respondent's determination in this case was handed down prior to the decision of the Appellate Division in Hull-Hazard I is of no consequence. In adhering to its own contrary interpretation and placing itself in direct conflict with the agency position, Hull willfully violated the overtime pay provision of the Labor Law (see, Matter of Loll [Ross], 57 N.Y.2d 116, 127; Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 55).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), judgment modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.