Opinion
Argued March 22, 1974
Decided May 8, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
James J. Dean and Edward F. Callan for appellant-respondent.
Louis J. Lefkowitz, Attorney-General ( Mortimer Sattler, Samuel A. Hirshowitz, Irving L. Rollins and Joan B. Scherb of counsel), for respondent-appellant.
MEMORANDUM. We affirm the order of the Appellate Division remitting the matter to the respondent for a further hearing. We point out, however, that we are persuaded to do so in large measure because petitioner, as a public utility, is not in the status of a competitor with those contractors comprising the sources of respondent's statistical information that served as a basis for its determination of the prevailing rate of wage to be paid petitioner's employees. Since we are not dealing with sources of information from petitioner's "competitors", the concern expressed by respondent regarding the destruction of any confidentiality enjoyed in obtaining the vital information, is unfounded. In short, no undue advantage would be obtained as to any possible future bidding that could occur as between true competitors.
The disclosure by respondent of its sources of information will permit petitioner to inquire into the validity of the data upon which respondent's determination was based, in terms of whether the surveyed employees of other employers were seasonal or year-round and whether they actually performed services similar to those of petitioner's employees.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS concur; Judge RABIN taking no part.
Order affirmed, with costs to petitioner, in memorandum.