Hudacs v. Village of Watkins Glen

• Decision Date: 09 February 1995
• Citation: 622 N.Y.S.2d 384,208 A.D.2d 181
• Parties: , 1995 O.S.H.D. (CCH) P 30,693 In the Matter of John F. HUDACS, as Commissioner of Labor of the State of New York, Petitioner, v. VILLAGE OF WATKINS GLEN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 384

622 N.Y.S.2d 384

208 A.D.2d 181, 1995 O.S.H.D. (CCH) P 30,693

In the Matter of John F. HUDACS, as Commissioner of Labor of the State of New York, Petitioner, v. VILLAGE OF WATKINS GLEN et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 9, 1995.

Dennis C. Vacco, Atty. Gen. (James M. Williams, Jane Lauer Barker and M. Patricia Smith, of counsel), New York City, for petitioner.

Connie Fern Miller, Village Atty., Watkins Glen, for Village of Watkins Glen, respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Industrial Board of Appeals which, inter alia, revoked a notice of violation and order to comply issued by petitioner.

Under the Public Employee Safety and Health Act (hereinafter PESH Act), covered employers are to provide employees with employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm (Labor Law § 27-a[3][a][1]. Respondent Village of Watkins Glen in Schuyler County was assessed a penalty by petitioner pursuant to Labor Law § 27-a(4)(a) for failure to abate violations of the PESH Act. The Village had been issued a notice of violation and order to comply and failed to obtain physical examinations of its volunteer firefighters assigned to tasks requiring the use of respirators.

The Village then appealed to respondent Industrial Board of Appeals (hereinafter the IBA) to review the penalty assessment. The IBA decided that service of the notice and order upon the fire chief of the Village did not comply with the service requirements of Labor Law § 27-a(6)(a). The IBA also held that the notice requirements involving municipalities required direct notice to the office of the principal elected official of the political subdivision. The IBA then revoked the applicable compliance orders and penalty assessments. Petitioner responded by commencing this CPLR article 78 proceeding to vacate the IBA's determination, asserting that the fire chief was given actual notice and that the Village officials in any event received actual notice of the violations.

It is within the IBA's authority to revoke orders of compliance and civil penalties issued by petitioner (see, Matter of Roberts v. Industrial Bd. of Appeals of State of N.Y., 106 A.D.2d 777, 778, 483 N.Y.S.2d 811). Judicial review is limited to determining whether the record contains substantial evidence to support the IBA's decision and a rational basis for the IBA's revocation of petitioner's order (Matter of Hudacs v. Kimmins Abatement Corp., 206 A.D.2d 803, 804, 615 N.Y.S.2d 131, 132). The construction given to the statute under review by the IBA, the agency charged with its enforcement, if not irrational or unreasonable, should be upheld (see, Matter of Hartnett v. Village of Ballston Spa, 152 A.D.2d 83, 85, 547 N.Y.S.2d 902, appeal dismissed, 75 N.Y.2d 863, 552 N.Y.S.2d 919, 552 N.E.2d 167, lv. denied 75 N.Y.2d 711, 557 N.Y.S.2d 309, 556 N.E.2d 1116; see also, Matter of Kreslein v. Perales, 204 A.D.2d 942, 943, 612 N.Y.S.2d 689).

The IBA could properly conclude that the fire chief of the Village was only an employee for purposes of service of compliance orders (see, Labor Law § 27-a[6][a]. If notice to such employees was sufficient then persons protected by the Labor Law could enforce compliance with the act or minimally guarantee notice of violations to the proper municipal official. The IBA reasoned that there was no good reason to believe that such employees would necessarily notify the municipal employer. Direct notice to the principal elected official of the employer assures notification to a municipal officer who can enforce compliance and who is accountable. The IBA's decision is consistent with this court's decision in Matter of Hartnett v. Village of Ballston Spa, supra, (see also, Matter of Hudacs v. Village of Hoosick Falls, 158 Misc.2d 623, 601 N.Y.S.2d 656). Deference should be given the IBA's interpretation here, which is consistent with prior rulings and involves knowledge of underlying operational practices (see, Matter of Board of Educ. of Pleasantville Union Free School Dist. v. Ambach, 132 A.D.2d 257, 259-260, 522 N.Y.S.2d 347; see also, Matter of Jefferson County v. New York State Pub. Empl. Relations Bd., 204 A.D.2d 1001, 613 N.Y.S.2d 73, lv. denied 84 N.Y.2d 804, 618 N.Y.S.2d 6, 642 N.E.2d 325).

Petitioner urges the adoption of the notice rule set forth in Secretary of...