Opinion
February 27, 1987
Present — Callahan, J.P., Denman, Green, Pine and Lawton, JJ.
Determination and order unanimously modified on the law and as modified confirmed without costs, in accordance with the following memorandum: Petitioner, a telecommunication installation contractor, seeks a review of a determination by respondent that its failure to pay correct benefits to workers and wages to apprentices was willful within the meaning of Labor Law § 220-b (3) (b). Petitioner does not dispute the definition of willfulness applied by respondent (see, Matter of Old Republic Life Ins. Co. v. Thacher, 12 N.Y.2d 48, 56) but contends that the facts do not establish it. In a finding affirmed by respondent, the Hearing Examiner determined that petitioner had had a previous violation on "very similar charges". Petitioner's president testified that there had been another violation but said that it was at the same time as or after the work on the project which is the subject of this proceeding. The only basis in the record for finding a previous violation was an unsworn statement by respondent's attorney that the first notice in the other matter was dated January 19, 1984, while work on the instant project was in progress. This statement was not evidence and no documents relating to the other violation were offered into evidence (see, State Administrative Procedure Act § 306). In view of the uncontroverted findings that petitioner was cooperative and paid the underpayment promptly when final agreement was reached on the amount, the record does not support a finding of willfulness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222). Therefore, the determination of willfulness is annulled and the fine imposed thereon is vacated.