Opinion
July 16, 1992
In our view, there is substantial evidence in the record to support respondent's factual determination that Lester Mancuso, a mason hired by petitioner to perform duties on a public works project, was petitioner's employee and not an independent contractor (see, Labor Law § 220). Evidence was adduced at the administrative hearing that Mancuso had no written contract with petitioner, did not hold himself out to the public to be an independent contractor, had never worked as a subcontractor on a public works project, had no employees and worked for no other employer during his engagement with petitioner (see, Matter of Etherington v. Empire Improvements, 55 A.D.2d 762). Even more significant, although all subcontractors on the project performed their contracted work for a fixed price to be paid at the conclusion of the work, the evidence showed that Mancuso was to be paid at a periodic rate for the number of days and half-days he actually worked (see, supra). Finally, we find ample basis in the record to affirm respondent's finding of willfulness (see, Matter of Mid Hudson Pam Corp. v. Hartnett, 156 A.D.2d 818, 821).
Mikoll, J.P., Yesawich Jr., Crew III and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.