source: Caselaw Access Project

author: Rosenblatt, J. Read, J. (dissenting).

license: Public Domain

text:
    [ 843 NE2d 140, 809 NYS2d 500]
    In the Matter of the Estate of Mildred B. Murphy, Deceased. Bonnie Gustin et al., as Executors of Mildred B. Murphy, Deceased, Petitioners; Evelyn Beckman, Respondent, and Connie Morral et al., Appellants.
    Argued September 15, 2005;
    decided October 27, 2005

      POINTS OF COUNSEL

      Devorsetz Stinziano Gilberti Heintz & Smith, P.C., Syracuse {Kevin G. Roe of counsel), and Welch & Zink, Corning, for appellants.
    The testatrix’s dispositions to her adopted-out child by name were dispositions to her issue and are subject to the anti-lapse provisions of the EPTL; adopted-out children are considered “strangers” to their natural families under the Domestic Relations Law only for the limited purpose of construing a testamentary disposition to a class. (Matter of Robert Paul P, 63 NY2d 233; Matter of Best, 66 NY2d 151; Matter of Seaman, 78 NY2d 451; Matter of Landers, 100 Misc 635.)

      Kenneth F. Joyce, Bath, William B. Joint and Sayles & Evans, Elmira (Clover M. Drinkwater of counsel), for respondent.
    The anti-lapse statute does not cause a testatrix’s bequest to her adopted-out son, identified in the will by name but not by relationship, to pass to his issue where the child was adopted by strangers and the testatrix did not expressly include his issue. (Matter of Best, 66 NY2d 151; Matter of Fabbri, 2 NY2d 236; Matter of Sawyer, 4 AD3d 800; Matter of Seaman, 78 NY2d 451.)
   OPINION OF THE COURT

Rosenblatt, J.

In her will, the testator (birth mother) bequeathed real and personal property to her adopted-out son. Because she outlived him, we must decide whether the bequests lapsed or pass to his issue under New York’s anti-lapse statute (EPTL 3-3.3).

In 1924, the testator, Mildred B. Murphy, gave birth to a son, Arthur. Arthur went to live with Jim E. and Mae Manning and was known throughout his childhood as Clair Willard Manning. The Mannings officially adopted him in 1944, when he was 19. Mildred had no other children. Clair and his birth mother reestablished their relationship some time after World War II.

In 1998, Mildred executed the will that is the subject of this suit. In the will, Mildred left her Keuka Lake cottage to Clair, along with $8,000 and half of the residuary estate. In addition to her bequests to Clair, she willed cash gifts to two of Clair’s children. The will also provided that the remaining half of the residuary estate go to her sister-in-law, Evelyn Beckman. Clair died on March 4, 2001, survived by four children. Mildred died 11 months later, on February 14, 2002.

After the will was admitted to probate, the executors brought this construction proceeding to determine the fate of the bequests to Clair. Beckman asserts that the bequests lapsed and should become part of the residuary estate. She argues that Domestic Relations Law § 117 (2) mandates that adopted-out children be treated as strangers for the purpose of construing the will of a birth relative and that the bequests were not saved by EPTL 3-3.3. The Surrogate agreed, ruling that the gifts to Clair lapsed in their entirety and passed to Beckman with the whole of the residuary estate. The Appellate Division affirmed the decree. We granted leave and now reverse.

The appeal before us involves the interplay of EPTL 3-3.3 and Domestic Relations Law § 117 (2). EPTL 3-3.3, the anti-lapse statute, provides that when a bequest is made to the issue or siblings of the testator, and the beneficiary predeceases the testator, the gift does not lapse but vests in the beneficiary’s surviving issue. The anti-lapse statute was designed “to abrogate . . . the common-law rule that a devise or legacy to [a predeceased child] lapsed and to substitute the children of the deceased child for the primary object of the testator’s bounty” (Pimel v Betjemann, 183 NY 194, 199 [1905]). The harshness of that common-law rule, more often than not, defeated the testator’s intention (id. at 200). We must determine whether the testator’s adopted-out child, expressly named in her will, qualifies as her issue within the meaning of EPTL 3-3.3. In simplest terms, the issue is “issue.”

In 1986, the Legislature revised subdivision (b) of EPTL 3-3.3, along with Domestic Relations Law § 117, defining “issue”—for the purpose of triggering the anti-lapse provision—to “include adopted children and their issue to the extent they would be included in a disposition to ‘issue’ ” under EPTL 2-1.3 and Domestic Relations Law § 117 (2). Domestic Relations Law § 117 (2) (a) provides:

“Except as hereinafter stated, after the making of an order of adoption, adopted children and their issue thereafter are strangers to any birth relatives for the purpose of the interpretation or construction of a disposition in any instrument, whether executed before or after the order of adoption, which does not express a contrary intention or does not expressly include the individual by name or by some classification not based on a parent-child or family relationship.” (Emphasis added.)

The Manning children contend that by naming their father— the adopted-out child—as a beneficiary under her will, Mildred altered his status from “stranger” to “issue” for the purposes of the anti-lapse statute with respect to that gift. Because much of Domestic Relations Law § 117 (2) (a) would lose meaning if we were to rule otherwise, we agree with this contention and reverse the Appellate Division order.

Until 1985, when we decided Matter of Best (66 NY2d 151 [1985]), it was not clear that adoption had any effect on the rights of adopted-out children to take under the testamentary instruments of their birth relatives, though the Legislature had limited the rights of such children in intestacy. In Best, we held that an adopted-out child will not take in a class gift from a birth relative unless that child is “specifically named in a biological ancestor’s will, or the gift is expressly made to issue including those adopted out of the family” (id. at 156).

The Legislature has amended section 117 several times since. In 1986, it adopted a modified version of the Best rule (L 1986, ch 408, § 1). Among the modifications, it allowed children adopted by certain other relatives within the birth family to take through class gifts under both lines. The Law Revision Commission had recommended that, where these intrafamily adoption rules did not apply, adopted-out children should be excluded from membership in “a class of persons based upon natural relationship . . . unless the will or instrument expresses a contrary intention.” The Legislature employed this language and expanded upon it by providing that such children are strangers to a birth relative’s will if it “does not express a contrary intention or does not include the individual by name.” (L 1986, ch 408, § 1.) The 1987 revision added a parallel provision to section 117 (1) for intrafamily adoption in intestacy situations, although, of course, without provision for the contrary intention of the decedent (L 1987, ch 499).

We based our decision in Best on three major policy considerations. We emphasized the importance of maintaining the confidentiality of adoption records, preserving the stability of real property titles and assimilating the adopted child into the adoptive family (66 NY2d at 155-156). These concerns are no less substantial today than they were 20 years ago, but we note that none of them is implicated in this case. We rely here on statutory construction.

Beckman argues, and the dissent agrees, that the language of section 117 supports her position. Because section 117 specifically states that “adopted children and their issue” are strangers to the will unless one of the conditions is met, the “individual” to be included by name (her argument goes) is any person claiming a right under the will as issue. Beckman contends that, because Clair (although named) had died, his children may not take because they are not individually named.

This argument would be plausible only if we read section 117 in isolation, devoid of its relationship to EPTL 3-3.3. Indeed, as the Manning children argue, if we were to read the section as Beckman and the dissent advocate, the testator’s expressed contrary intention or naming of the adopted-out child would have no practical or legal effect other than to allow the named individual to take the bequest. The named adopted-out child would then be in the same position as any other named nonrelative in any will. Surely the Legislature did not enact section 117 (2) (a) merely to state the obvious: that someone named in a will may inherit.

Moreover, the provisions in section 117 (1) and section 117 (2) are parallel insofar as possible, considering the inevitable differences between intestate distribution and probate of a will. This was a primary consideration in the 1987 revision, which added provisions for intestacy similar to those promulgated the year before for testamentary instruments (Matter of Seaman, 78 NY2d 451, 459 [1991]). In Matter of Seaman we held, concerning the treatment of intrafamily adoptions in section 117 (1):

“The issue’s right to inherit from the natural family was severed, however, in 1963 when the Legislature severed the adopted child’s right to so inherit. From this, it follows that when the Legislature restored the right of the adopted-out child to inherit from the natural family under the circumstances specified in Domestic Relations Law § 117 (1) (e), it also restored the right of the adopted-out child’s issue to do so” (id. at 456 [citations omitted]).

As a result, we concluded that it was unnecessary for the Legislature to refer expressly to the adopted-out child’s “issue” when enacting section 117 (1) (e). The statute implicitly restored inheritance rights to the issue of the adopted-out child when it restored them to the child (id. at 457).

The dissenting opinion reads EPTL 3-3.3’s reference to section 117 (2) as a broad reference to the classes of intrafamily adoptions that preserve birth inheritance rights, rather than as a reference to section 117 (2) (a) (dissenting op at 48). That interpretation is untenable because section 117 (2) is the subdivision of section 117 that covers adopted-out children in the testacy context. A will remains a prerequisite for anti-lapse, and section 117 (2) is the only subdivision of section 117 to which the anti-lapse statute could be referring. Our dissenting colleague contends that, by allowing testators to invoke the anti-lapse statute for their adopted-out children, our reading “does not treat the issue of adopted-out children comparably under the laws of intestacy and testacy” (dissenting op at 47). The dissenter’s argument, however, fails to note that section 117 (2) (a) is the very provision that marks the necessary differences between the two contexts. If there could be a perfect parallel, there would be no need for separate subdivisions.

The question before us is analogous to the one answered in Seaman, and it is not one of the few instances that section 117 requires us to treat differently between testacy and intestacy. To follow the legislative parallel between testamentary law and the law of intestacy as much as the necessary differences allow, we must treat the restoration of Clair’s status as issue as the restoration of that status to his children as well.

We therefore conclude that, under Domestic Relations Law § 117 (2) (a), adopted children and their issue are ordinarily “strangers” to their birth relatives, and thus are excluded from class gifts. They are not “strangers” when the bequest is to a named adopted-out child—here, to Clair Manning. If “stranger” or the three “nonstranger” conditions of section 117 (2) are to have any meaning, it must mean that biological children who are not “strangers” are “issue” under the anti-lapse statute. We therefore conclude that when Mildred Murphy named her adopted-out son Clair as a beneficiary of her will, she triggered the condition in section 117 (2) that made him a nonstranger, and thus her issue, with respect to the relevant bequest. His children, therefore, are entitled to the benefit of the anti-lapse statute.

Accordingly, the order of the Appellate Division should be reversed, with costs payable out of the estate, and the matter remitted to Surrogate’s Court for further proceedings in accordance with this opinion.

Read, J. (dissenting).

While the majority’s interpretation of the “interplay” between Domestic Relations Law § 117 (2) (a) and EPTL 3-3.3 is certainly not fanciful, it strikes me as implausible in light of relevant statutory language and history. Accordingly, I respectfully dissent.

Prior to its amendment in 1986, subdivision (1) of section 117 of the Domestic Relations Law provided that an adopted person could not inherit in intestacy from or through his biological family, except where the biological parent remarried and consented to adoption by the spouse. Subdivision (2) of section 117, however, specified that

“[t]his section [117] shall apply only to the intestate descent and distribution of real and personal property and shall not affect the right of any child to distribution of property under the will of his natural parents or their natural or adopted kindred . . . or under any inter vivos instrument.”

In Matter of Best (116 Misc 2d 365 [Sur Ct, Westchester County 1982]), the Surrogate was faced with the question whether, in light of subdivision (2), a child adopted out of the family by a nonrelative could inherit as a member of a class of beneficiaries (i.e., “issue”) identified in his biological grandmother’s will. The Surrogate concluded that he could. Recognizing the jurisdictional problems presented by his interpretation of section 117 (2) as well as the risk to the confidentiality of adoption proceedings, he urged legislative study and amendment to

“limit the adopted-out child’s interest in decedents’ estates to the bloodline of his adoptive parents except in those instances when a will of a biological kindred discloses in clear language an intention to distribute a portion of the estate to the adopted-out child. To continue the existing statute without amendment will give rise to litigation, delays in the settlement of estates and the distribution of property to persons not only unknown to a testator but to unintended beneficiaries” (id. at 375).

In 1984, the Law Revision Commission drafted and recommended adoption of a bill to cure the so-called Best problem by creating a statutory default rule for construing gifts made to a class to which an adopted-out child belonged in his biological relationship prior to adoption (see 1984 NY Senate-Assembly Bill S 8325, A 10131). This bill amended section 117 of the Domestic Relations Law so as to permit an adopted-out child to inherit under either intestacy (subdivision [1]) or a will or inter vivos instrument (subdivision [2]) from biological kindred as he would have prior to adoption, but only if adopted by a stepparent, a birth grandparent or a descendant of a birth grandparent. The bill concomitantly amended subdivision (b) of EPTL 3-3.3, the anti-lapse statute, so that “issue,” “surviving issue” and “issue surviving” included adopted-out children “to the extent they may inherit under the provisions of section one hundred seventeen of the domestic relations law” (that is, from a stepparent, a birth grandparent or the descendant of a birth grandparent under the terms of the bill). In short, the bill created a symmetrical standard that gave adopted-out children the right to inherit in both intestacy and testacy from identical and limited categories of close kindred.

Although passed, by both houses of the Legislature, the 1984 bill ultimately foundered on the shoals of strong opposition from the New York State Bar Association’s Trust and Estates Law Section, which had developed a competing proposal (see Proposed Legislation to amend Domestic Relations Law [“DRL”] § 117 and Estates, Powers and Trusts Law [“EPTL”] §§ 2-1.3 and 3-3.3, Bill Jacket, Veto 106 of 1984, at 50). Governor Mario M. Cuomo vetoed the bill, noting ambiguities and “the substantial lack of consensus within the legal community,” which argued “for further deliberate review” (Governor’s Veto Mem 106, 1984 NY Legis Ann, at 403).

In 1985, we reversed the Appellate Division’s order in Best and remitted to Surrogate’s Court, concluding that “[o]nly if a child adopted out of the family is specifically named in a biological ancestor’s will, or the gift is expressly made to issue including those adopted out of the family, can the child take” (Matter of Best, 66 NY2d 151, 156 [1985]). We left open the question of the “hybrid cases,” where a child was adopted by a stepparent or a member of the biological family and different policy considerations might therefore apply (id. at 155 n 1).

In 1986, the Law Revision Commission drafted and recommended adoption of another version of a bill related to the Best dilemma (see 1986 NY Senate-Assembly Bill S 8366, A 10462). This bill recast former subdivision (2) of section 117 as paragraph (h) of subdivision (l), and added a new subdivision (2) to govern dispositions under wills and inter vivos instruments. The new subdivision (2) read in relevant part as follows:

“(a) As to the wills of persons dying after the thirty-first day of August, nineteen hundred eighty-six, or to inter vivos instruments executed after such date, a designation of a class of persons based upon natural relationship shall, unless the will or instrument expresses a contrary intention, be deemed to include an adoptive child who was a member of such class prior to adoption only if:
“(1) an adoptive parent (i) is married to the child’s natural parent, (ii) is the child’s natural grandparent, or (in) is a descendant of such grandparent, and
“(2) the testator or creator is the child’s natural grandparent or a descendant of such grandparent.”

The 1986 bill thus limited an adopted-out child’s rights to inherit from biological kindred under a will or inter vivos instrument to the identical limited categories of close biological relatives as was the case in the vetoed 1984 bill (i.e., a stepparent, a birth grandparent or a descendant of a birth grandparent). The 1986 bill also amended subdivision (b) of EPTL 3-3.3 to provide that “issue,” “surviving issue” and “issue surviving” included adopted-out children “to the extent they may inherit under the provisions of section one hundred seventeen of the domestic relations law.”

This time around, the Law Revision Commission and the State Bar Committee on Estate and Trust Administration struck a deal. The State Bar Committee endorsed the 1986 bill so long as certain “technical changes” were made (see Legislation Report, Bill Jacket, L 1986, ch 408, at 65). As relevant to this case, one of those technical changes called for a new subdivision (2) (a) of section 117 and the relettering of proposed subdivision (2) (a) as (2) (b). This new subdivision (2) (a), modeled on a provision of the Uniform Adoption Act, specified that Chapter 408 of the Laws of 1986 reflected the technical changes required by the State Bar Committee as the price of its endorsement, including the new section 117 (2) (a).

“[e]xcept as hereinafter stated, after the making of an order of adoption, adopted children and their issue thereafter are strangers to any natural relatives for the purpose of the interpretation or construction of a disposition in any instrument, whether executed before or after the order of adoption, which does not express a contrary intention or does not expressly include the individual by name or by some classification not based on a parent-child or family relationship.”

Thus, in the 1984 bill and in the initial version of the 1986 bill, subdivision (2) (a) of section 117 consisted only of what was subsequently relettered subdivision (2) (b) in the bill enacted as chapter 408—the provision confining an adopted-out child’s rights to inherit from biological kindred under a will or inter vivos instrument to specified categories of close relatives. There is nothing in the legislative history of chapter 408 to suggest that the Legislature intended the addition of the refashioned subdivision (2) (a) to accomplish anything other than what the State Bar Committee envisioned; namely, a technical, not a substantive change to the original bill. There is certainly no basis for concluding that this technical change caused EPTL 3-3.3, the anti-lapse statute, to bear on Domestic Relations Law § 117 (2) in the way advocated by Clair Manning’s children and adopted by the majority. Under the majority’s interpretation, however, by making a bequest to an adopted-out child by name, a testator restores the adopted-out child to his preadoption rights of inheritance as biological kindred with respect to that bequest. Thus, the child adopted out by strangers, merely by being named in a will, achieves inheritance rights on a par with the child adopted out by close kindred. A testator will have to express the contrary intention in order to avoid this result whenever making a bequest to an adopted-out child by name. This cuts against the grain of chapter 408, which presumes that the average testator would likely only intend for the issue of a child adopted out by specified close kindred to qualify as substituted takers under the anti-lapse statute.

Nor does section 117 (2) (a) lack meaning and effect unless interpreted in conjunction with EPTL 3-3.3 in the way suggested by the majority. It is under subdivision (2) (a) that the bequests to two of Clair Manning’s four children pass. Under section 117 (2) (a), as issue of an adopted-out child they were made strangers to their birth grandmother for purposes of interpreting the dispositions in her will. Subdivision (2) (a), then, simply makes clear that notwithstanding this, these two grandchildren may take by name as would any other stranger. Further, testator could have, for example, provided in her will that she intended to make her bequests to “My child, Clair Manning, as though he had never been adopted”; or she could have directed that the adoption of Clair Manning was to be disregarded for purposes of construing the dispositions in her will. In either event, she would have “express[ed] a contrary intention” under subdivision (2) (a), thus contradicting the legislative presumption that adopted-out children and their issue are strangers to their biological relatives for purposes of inheritance, except as specified in subdivision (2) (b). But, of course, she did not do this. Finally, subdivision (2) (a) also preserves bequests to an adopted-out child as a member of some classification not based on the parent-child or family relationship; for example, testator might have made a bequest to the members of her Saturday afternoon bridge club. Assuming that Clair Manning was a member of this classification, the majority’s interpretation creates some odd results. Presumably, this gift to him would not lapse if ÉPTL 3-3.3, in fact, saves gifts to an adopted-out child taking a bequest under the terms of Domestic Relations Law § 117 (2) (a). If the testator had made the bequest to “Clair Manning, John Doe and Jane Roe, with whom I have enjoyed playing bridge on Saturday afternoon for 25 years,” and both Clair Manning and John Doe predeceased her, the bequest to Clair Manning clearly would not lapse under the majority’s interpretation (because Clair Manning was named and because he was biological issue), but the bequest to John Doe would.

Additionally, the majority’s interpretation of Domestic Relations Law § 117 (2) (a) ignores some of its language. Section 117 (2) (a), as relevant in this case, applies to “adopted children and their issue” unless “the individual” is included by name (emphasis added). The phrase “and their issue” is superfluous under the majority’s reading of section 117 (2) (a), for the majority reads the word “individual” as synonymous with the phrase “adopted child[ ].” The majority’s reading of section 117 (2) (a) also does not treat the issue of adopted-out children comparably under the laws of intestacy and testacy, the Legislature’s avowed purpose when it amended Domestic Relations Law § 117 (1) in 1987 (see generally, Bill Jacket, L 1987, ch 499).

Finally, although this appeal turns on statutory interpretation, nothing on the face of testator’s will indicates any intention to favor Clair Manning’s four children over her Beckman relatives. In the will’s “Ninth” paragraph decedent makes 16 separate bequests to 13 named individuals and three churches, charities or societies. Only two of Clair Manning’s four children are included in any of the 13 bequests to named individuals, one for $5,000 and the other for $3,000; at least four of these 13 bequests (and perhaps more—it is not apparent from the face of the will or otherwise from the record) are made to Beckman relatives, two for $10,000, the most of any of the individual bequests, and two for $5,000. The will’s executors are Beckman relatives.

In sum, statutory language and legislative history belie the notion that Domestic Relations Law § 117 (2) (a) is dependent on EPTL 3-3.3 for its meaning and effect. Clair Manning’s children should not take under section 117 (2) (a) except to the extent that two of them are the named beneficiaries of specific bequests; they should not take under EPTL 3-3.3 because their father was not adopted by any of the limited categories of close kindred specified in Domestic Relations Law § 117 (2) (b). Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and R.S. Smith concur with Judge Rosenblatt; Judge Read dissents and votes to affirm in a separate opinion.

Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and matter remitted to Surrogate’s Court, Steuben County, for further proceedings in accordance with the opinion herein.

      . The relevant provision reads:
      “Fifth. I give, devise and bequeath to CLAIR W MANNING of Wellsboro, PA the real property owned by me on Keuka Lake, located at 132 and 134 West Lake Road, consisting of a cottage, extra lot and boathouse together with all of the contents and property located therein and thereon. I further give and bequeath to Clair W Manning the sum of Eight thousand dollars ($8,000.00).”

      . Adoption did not exist at common law, and New York did not authorize it by statute until 1873 (L 1873, ch 830). That first adoption statute explicitly excluded inheritance from among the rights acquired or lost through adoptive relationships. Fourteen years later, the Legislature amended the statute to allow adopted children to inherit through both birth and adoptive Unes (L 1887, ch 703). The matter stood that way through the enactment of the Domestic Relations Law and several versions of what, in 1961, became Domestic Relations Law § 117 (L 1961, ch 147). It was not until 1963 that section 117 was amended to preclude adopted-out children from inheriting through their birth relationships, except in cases of adoption by a stepparent. A further amendment in 1966 clarified section 117’s scope by expressly limiting the inheritance preclusion to intestate descent and distribution. (See generally Matter of Seaman, 78 NY2d 451, 455-458 [1991]; Recommendation of Law Rev Commn to 1986 Legislature, Bill Jacket, L 1986, ch 408, at 10; French, Note, When Blood Isn’t Thicker than Water: The Inheritance Rights of Adopted-Out Children in New York, 53 Brook L Rev 1007, 1011-1012 [1988].)

      . Recommendation of Law Rev Commn to 1986 Legislature, at 37, Bill Jacket, L 1986, ch 408, at 46.

      . The Law Revision Commission’s 1985 bill (see 1985 NY Senate-Assembly Bill S 5535, A 7455) on this topic, like the vetoed 1984 bill, applied both to intestacy and to class gifts under testamentary and inter vivos instruments. This bill was never acted on in either house.

      . This was the language that caused the lower courts in Best to conclude that the rights of an adopted-out child were terminated only with respect to intestate descent and distribution, and not under a will or inter vivos instrument. Most of this language in former subdivision (2)/new subdivision (1) (h) was deleted in the bill subsequently enacted as chapter 408 of the Laws of 1986.

      . Section 14 of the Uniform Adoption Act provides that adoption decrees generally
      “terminate all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives

        for all purposes including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship” (Uniform Adoption Act § 14 [a] [1] [emphasis added]).


author: Graffeo, J. R.S. Smith, J. (dissenting).

text:
    [ 844 NE2d 276, 810 NYS2d 729]
    In the Matter of Marke Lantry, Doing Business as Thorough Job Architectural Construction Systems, Appellant, v State of New York et al., Respondents.
    Argued November 15, 2005;
    decided December 15, 2005

      POINTS OF COUNSEL

      Hancock & Estabrook, LLP, Syracuse (Stewart F. Hancock, Jr., Alan J. Pierce and Sonya G. Bonneau of counsel), for appellant.
    I. The Appellate Division’s judgment should be reversed because it is predicated on and erroneously confirms the Commissioner of Labor’s misapplication of the 1983 amendments to Labor Law § 220. (Matter of Kelly v Beame, 15 NY2d 103; Matter of Marangos Constr. Corp. v New York State Dept. of Labor, 216 AD2d 758; Matter of Liquid Asphalt Distribs. Assn. v Roberts, 116 AD2d 295; Matter of Otis E. Serv. v Hudacs, 185 AD2d 483; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279; Matter of New York Tel. Co. v New York State Dept. of Labor, 272 AD2d 741.) II. The Appellate Division erred in failing to vacate the Commissioner of Labor’s determination and order, which overrules existing precedent and adopts a new rule without valid reason. (Matter of Marangos Constr. Corp. v New York State Dept. of Labor, 216 AD2d 758; Matter of Kelly v Beame, 15 NY2d 103; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516.) III. The Appellate Division should have vacated the determination and order because it fails to set forth a definite, understandable rule capable of being applied in future trade classifications and that can be subject to effective judicial review. (Matter of Marangos Constr. Corp. v New York State Dept. of Labor, 216 AD2d 758; People v Cull, 10 NY2d 123; Matter of Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO v State of New York, 229 AD2d 286; Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117, 76 NY2d 946.) IV The Department of Labor’s “intrinsic nature of the work” rule for trade classifications under Labor Law § 220 was adopted in violation of the State Administrative Procedure Act and the State Constitution. (Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 109 AD2d 140, 66 NY2d 948; Matter of Cordero v Corbisiero, 80 NY2d 771; Matter of Schwartfigure v Hartnett, 83 NY2d 296; Matter of Alca Indus, v Delaney, 92 NY2d 775; People

      v Cull, 10 NY2d 123; Yaretsky v Blum, 453 F Supp 653; Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117; Matter of Sunrise Manor Nursing Home v Axelrod, 135 AD2d 293; Matter of Maher v New York State Div. of Hous. & Community Renewal, 158 Misc 2d 826.)

      Eliot Spitzer, Attorney General, New York City (Benjamin Gutman, Daniel Smirlock, M. Patricia Smith, Patrick BarnettMulligan and Pico Paul Ben-Amotz of counsel), for respondents.
    I. The Commissioner of Labor rationally relied on the nature of the work rather than surveys in determining that installing preglazed windows is ironwork, not glaziers’ work. (Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117, 76 NY2d 946; Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Kelly v Beame, 15 NY2d 103.) II. The flawed decision in Matter of Cortland Glass does not render the Commissioner of Labor’s determination in this case irrational. (Matter of Tap Elec. Contr. Serv. v Roberts, 104 AD2d 548; Matter of Otis E. Serv. v Hudacs, 185 AD2d 483; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279; Matter of Naftilos Painting & Sandblasting v Hartnett, 173 AD2d 964; Matter of Marangos Constr. Corp. v New York State Dept. of Labor, 216 AD2d 758; Matter of Currier [Woodlawn Cemetery], 300 NY 162; Sam & Mary Hous. Corp. v Jo/Sal Mkt.Corp., 100 AD2d 901, 64 NY2d 1107; Matter of New York Tel. Co. v New York State Dept. of Labor, 272 AD2d 741; Matter of International Assn. of Bridge, Structural & Ornamental Iron Workers, Local Union No. 6, AFL-CIO v State of New York, 280 AD2d 713; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516.) III. The Commissioner of Labor’s assessment of the nature of the work is subject to effective, if limited, judicial review. (Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Nehorayoff v Mills, 95 NY2d 671.) IV The Commissioner of Labor’s classification principles are not rules subject to the State Administrative Procedure Act. (Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948; Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117; Matter of Schwartfigure v Hartnett, 83 NY2d 296.)
   OPINION OF THE COURT

Graffeo, J.

In this CPLR article 78 proceeding, a contractor challenges the methodology used by the Department of Labor to classify work for purposes of determining the appropriate prevailing wage rate to pay workers on public projects, arguing that the Department erred because it did not consider survey evidence of local contractor practices in making a trade classification. We hold that the Department need not conduct such surveys in order to classify work and conclude that the Commissioner’s determination was neither arbitrary nor capricious.

Petitioner Marke Lantry, doing business as Thorough Job Architectural Construction Systems, subcontracted to install preglazed windows for the Ichabod Crane Central School District in Columbia County in 1997. Lantry paid his employees (who were not represented by a trade union) the glaziers’ wage rate for their labor on the project. The Department’s Bureau of Public Work conducted a random audit of the project and concluded that Lantry had underpaid some of his employees. With respect to the workers engaged in window installation, the Bureau asserted that they should have beén compensated at the higher rate of pay for ironworkers. The Bureau assessed Lantry with an underpayment of approximately $5,400 and directed the school district to withhold certain payments from him.

Lantry responded by requesting a hearing to contest the Bureau’s findings. Presuming that the Department would use a “prevailing practice in the locality” approach, which relies on surveys of local contractors to determine the trade classification of workers for wage rate purposes, Lantry sought to establish that the prevalent practice in the Capital District area was for contractors to pay their employees installing preglazed windows at the glaziers’ rate, rather than the ironworkers’ rate.

At the hearing, the Department’s principal witness was the senior public work wage investigator, who had audited Lantry’s project. He testified that in classifying a particular task into the appropriate trade or occupation, the Department generally analyzes the specific nature of the work, together with collective bargaining agreements, jurisdictional agreements and past Bureau recognition. In his 16 years as a Department investigator, he indicated that he never examined the “prevailing practice” in a locale or elicited survey-type information from contractors. The witness explained that he classified the work done by Lantry’s employees as ironwork after considering several factors, including the nature of the task and an agreement between ironworkers and carpenters indicating that ironworkers retained jurisdiction over the installation of metal window frames into masonry. The Department also presented testimony that revealed that the glaziers’ union had a minimal presence in the Capital District area in the mid-to-late 1990s.

In contesting the Bureau’s determination that the window installation work should have been classified as ironwork, Lantry submitted the testimony of various union and nonunion glazier contractors who claimed to have consistently treated the installation of preglazed windows as glaziers’ work and had paid the glaziers’ rate for such labor. A market research consultant who had been hired by the New York State Glass Association to survey the scope of work undertaken by glazier contractors also testified. Based on statistical evidence developed from this survey, he stated that most of these contractors used glaziers to install preglazed windows, although some employed ironworkers or carpenters for such tasks.

After the administrative hearing, the hearing officer issued a report and recommendation accepting the Bureau’s ironwork classification and finding of underpayment. Recognizing that the Department could rely on collective bargaining agreements in making classification determinations, the hearing officer noted that in this case the relevant agreements for glaziers and ironworkers both claimed jurisdiction over preglazed window installation. He therefore needed to examine other indices that the Department historically relied on to classify work, such as the nature of the work and pertinent jurisdictional agreements. The hearing officer accorded Lantry’s survey evidence little weight, believing that the classification of work should not be dictated by statistics.

The Commissioner subsequently issued a determination and order adopting the hearing officer’s findings of fact, conclusions of law and recommendations in their entirety. Lantry commenced this article 78 proceeding seeking to vacate the Commissioner’s order. The Appellate Division confirmed the determination. We granted Lantry leave to appeal and now affirm.

Labor Law § 220 implements the constitutional mandate that contractors engaged in public projects pay their workers wages and supplements which “shall be not less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work ... is performed” (Labor Law § 220 [3]; see also NY Const, art I, § 17). The Commissioner is responsible for determining the prevailing wage rates for the various trades in each locality (see Labor Law § 220 [3]). Calculation of the prevailing rate entails a two-step process. First, the Commissioner must classify the work by assigning the task performed by an employee to a specific trade or occupation (see Labor Law § 220 [3-a] [a]). Second, the Commissioner must ascertain the prevailing rate for that trade or occupation in the relevant locality (see Labor Law § 220 [3], [5] [a]).

In the early 1980s, the Commissioner fixed prevailing wage rates by performing industry surveys of the actual wages received by trade workers in each of the state’s localities (see Matter of Liquid Asphalt Distribs. Assn. v Roberts, 116 AD2d 295, 296 [3d Dept 1986]; see also Labor Law former § 220 [5]). This process, which required the Department to survey over 1,500 localities, was costly and burdensome and the Department’s experience demonstrated that the prevailing wage rates that were adopted would invariably equate to collectively bargained wages. Thus, the Legislature amended the Labor Law in 1983 to authorize the Commissioner to dispense with the survey process and instead adopt the rate paid in a locality by referring to collective bargaining agreements between labor organizations and private sector employers, provided that such agreements covered at least 30% of the workers in that trade or occupation (see Labor Law § 220 [5] [a], [c]; see also L 1983, ch 447).

Nothing in section 220 of the Labor Law mandates that the Commissioner consider actual contractor practices in a locality when classifying work. To the contrary, while the statute provides a specific process for calculating the “prevailing rate of wage” (see Labor Law § 220 [5] [a]), it does not require a specific procedure for the Commissioner to use in evaluating the appropriate trade or occupation to assign to particular work.

Lantry argues that the Commissioner’s classification of the work involved in installing preglazed windows into masonry as ironwork rather than glazier work was arbitrary and capricious. Specifically, Lantry contends that a “prevailing practice in the locality” test, based on industry survey information and contractor testimony regarding what type of workers are actually performing the task in dispute, should be the standard the Commissioner follows to classify work. Hence, Lantry asserts that the Commissioner erred in failing to credit the survey data and the testimony of the contractors that he claims confirmed that glaziers do more preglazed window installation jobs than ironworkers. We disagree.

In the absence of a statutory directive, this Court will uphold the Commissioner’s methodology as long as it is not unreasonable (see Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597, 604 [2005]). Furthermore, it is well settled that trade classifications “are a matter given to the expertise of the Department and courts are strongly disinclined to disturb them, absent a clear showing that a classification does not reflect ‘the nature of the work actually performed’ ” (Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117, 120 [3d Dept 1990], affd for reasons stated below 76 NY2d 946 [1990] [citations omitted], quoting Matter of Kelly v Beame, 15 NY2d 103, 109 [1965]).

Here, the Commissioner outlined the analysis that the Department generally follows in classifying work. Although a number of factors may be relevant, where a union has obtained jurisdiction over a certain category of work through the collective bargaining process, the Department will typically adopt the classification assigned in the collective bargaining agreement. But where a dispute arises between two unions that each claim jurisdiction over the same type of work, the Department necessarily expands its review to encompass other factors, such as jurisdictional agreements, past precedent, and the inherent nature and characteristics of the work in question. In neither scenario, the Commissioner observed, would the Department rely on “a survey or comparison of sheer numbers to determine the appropriate classification of work.”

Courts have consistently held that the Commissioner may rely on collective bargaining agreements in making trade classifications (see e.g. Matter of Otis E. Serv. v Hudacs, 185 AD2d 483, 485 [3d Dept 1992]; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279, 283 [3d Dept 1992], appeal dismissed 79 NY2d 1039 [1992], lv denied 80 NY2d 757 [1992], cert denied 507 US 972 [1993]; Matter of Naftilos Painting & Sandblasting v Hartnett, 173 AD2d 964, 966 [3d Dept 1991]). The Commissioner’s use of collective bargaining agreements to classify work is consistent with the 1983 amendments to section 220 of the Labor Law, which authorized the Department to rely on collective bargaining agreements rather than survey data to determine prevailing wage rates and supplements. Although those amendments did not specifically address the Commissioner’s classification prerogative, they evince a recognition by the Legislature of the administrative burden of compiling and updating surveys and therefore support the Commissioner’s conclusion that the survey approach urged by Lantry is impractical.

Likewise, we do not find the Commissioner’s consideration of other factors, including the nature and characteristics of the work at issue—to the exclusion of survey evidence of contractor practices—to be irrational. Although underpayments sometimes occur, necessitating reimbursement of workers after the fact, the Department’s mission is to ensure that workers are paid the correct wage in the first instance. Thus, the Department and contractors need to know the trade classification for an item of work before commencement of a public project so that the appropriate prevailing rate of wages and supplements can be ascertained and workers compensated accordingly. It would be difficult for the Commissioner to classify work in a timely manner if she had to depend on survey data of local practices with respect to each of the more than 100 trades in the construction industry. Additionally, the Commissioner’s emphasis on examining the nature of the work for trade or occupation classification is reasonable given this Court’s pronouncement that the nature of the work performed is “[t]he pivotal question” in reviewing the Department’s trade classifications (Matter of Kelly v Beame, 15 NY2d 103, 109 [1965]). In sum, contrary to Lantry’s position, the Department need not compile survey evidence to determine the appropriate trade classification for a particular type of work.

In this case, both the applicable glaziers’ and ironworkers’ collective bargaining agreements claimed jurisdiction over the installation of preglazed windows. The Commissioner therefore looked to other factors to classify the task. Primarily, the Commissioner relied on evidence of the process of installing preglazed windows into masonry openings, which involves the attachment of aluminum clips to each window with fastener screws, noting that no glazing was necessary because the window manufacturer already performed that function. The Commissioner also considered the jurisdictional agreement between carpenters and ironworkers, under which the ironworkers claimed jurisdiction over the installation of metal window frames into masonry, as well as evidence that the local glaziers’ union had little presence in the region in the 1990s. The Commissioner had the discretion to weigh this evidence more heavily than that proffered by Lantry, which consisted largely of testimony and survey data indicating that glazier contractors considered preglazed window installation to be glaziers’ work. According the Commissioner deference based on her expertise in this area, we cannot say that her classification of the task at issue as ironwork was arbitrary or capricious or inconsistent with the nature of the work.

Nevertheless, Lantry urges that the Commissioner’s determination cannot be sustained because a prior determination of the Department directly conflicts with the result reached in this case. Lantry cites Matter of Cortland Glass Co. (PRC Nos. 94-8074A, 95-0790 [Jan. 10, 2000]), in which an Erie County contractor was charged with underpaying its employees at the glaziers’ rate rather than the ironworkers’ rate where they had installed preglazed windows on a public work project. After a hearing, the Department held that no underpayment occurred, concluding that the contractor properly used the glaziers’ rate. The Department relied heavily on evidence indicating that the actual practice undertaken by contractors in the region was to classify such work as glaziers’ work. Lantry submits that the Cortland Glass determination should inform the result in his case.

It is well settled that “[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious” (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 517 [1985]). Here, however, the Commissioner acknowledged that the Cortland Glass decision was inconsistent with the current determination and set forth her reasons for declining to follow its rationale and conclusion. The Commissioner explained that actual practice evidence is generally not relevant to the process of classifying work, overruling Cortland Glass, to the extent it held otherwise, as flawed and a departure from longstanding departmental precedent. We conclude that the Commissioner satisfied her obligation under Field Delivery.

Lantry’s remaining contentions are without merit.

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

R.S. Smith, J. (dissenting).

The issue here is not whether the Department of Labor must conduct a survey every time it classifies work for purposes of the prevailing wage requirements. No one says that it must. Nor is the question whether the Department may consider collective bargaining agreements in classifying work. Of course it may. The question is whether the Department may classify work on some basis other than the “prevailing practice,” or custom, as to which workers actually perform the work in question.

I am unable to discern any coherent or comprehensible alternative to the “prevailing practice” approach that the Department has long followed. The Department says that it is free to substitute what it calls the “nature of the work” test, but that test seems to me devoid of meaningful content. Thus, in sanctioning the Department’s departure from the prevailing practice test, I think the majority opens the door to arbitrary decision-making.

In this case, the Department of Labor has required petitioner to pay ironworkers’ wages for the installation of preglazed windows, despite overwhelming evidence that this work is customarily performed by glaziers, not ironworkers. The Department’s position is that this evidence is irrelevant. The report and recommendation of the hearing officer in this case, which the Commissioner of Labor adopted, found that the Department’s own decision in Matter of Cortland Glass Co. (PRC Nos. 94-8074A, 95-0790 [Jan. 10, 2000]) was erroneous because it “determin[ed] the prevailing practice” rather than applying what the hearing officer called “the intrinsic ‘nature of the work’ factor” in deciding how to classify the activity in question. The hearing officer quoted a dictionary definition of “intrinsic”: “belonging to the essential nature or constitution of a thing.”

Thus the Department’s decision here rests on the premise that an activity like installing preglazed windows has an “intrinsic” nature that can be determined without reference to what the prevailing practice is. The Department does not explain how the intrinsic nature of a particular kind of work is to be discovered. I would hold that the Department’s decision must be set aside, because I do not think it is possible to define the Platonic ideal of either the work of ironworkers or the work of glaziers, without considering what ironworkers and glaziers actually do.

The evidence relied on by the hearing officer in this case neither clarifies what the Department thinks the “nature of the work” test is nor offers any assurance that the test can be rationally or predictably applied. Since he considered prevailing practice irrelevant, the hearing officer discounted all evidence of who actually does the work in question—including a survey presented by petitioner that put the glaziers’ share of such work in eastern New York at 94%. The hearing officer consulted collective bargaining agreements, but found that the work in question is claimed by both glaziers and ironworkers and declined to “enter into a jurisdictional dispute between unions.” The hearing officer relied instead on an agreement between ironworkers and carpenters, to which the glaziers were not a party, in which the carpenters ceded the installation of preglazed windows to the ironworkers; this is a bit like relying on an agreement between the United States and Mexico to settle a United States-Canada border dispute.

According to the majority, the Department relied “[pjrimarily” on “evidence of the process” by which preglazed windows are installed; the majority mentions that the process involves “aluminum clips” and “fastener screws,” and that “no glazing was necessary” (majority op at 57). But the opinion of the Department’s hearing officer does not say that he relied “primarily” on this evidence, and neither he nor the majority explains how it supports the conclusion that installation of preglazed windows is intrinsically ironwork.

An attempt to find the intrinsic nature of this work by use of a dictionary will be unproductive. My dictionary defines “glazing” as “the action, process, or trade of fitting windows with glass” (Merriam-Webster’s Collegiate Dictionary [10th ed 1993]). The Department, and the majority, apparently infer from the term “preglazed” that glazing occurs when products called windows, consisting of glass and other materials, are manufactured; but why could not the dictionary definition apply equally well to the activity in which products consisting largely of glass are attached to the spaces called windows in a building? And in any event, where is the “ironwork”? Where, for that matter, is the iron? My point here is not to show that the glaziers would win the verbal debate, though perhaps they would; it is to show that this sort of sterile wordplay, divorced from the question of what workers in the real world do, is not a basis for the rational classification of work for purposes of the prevailing wage law.

The Department, and the majority, suggest that the cases support using a “nature of the work” rather than a “prevailing practice” test, but I think this is a misinterpretation of the cases. The decisions that use the term “nature of the work” support the commonsense idea that one must examine the nature of the work in order to determine what the prevailing practice is; they do not suggest that “nature of the work” and “prevailing practice” are alternatives. Matter of Kelly v Beame (15 NY2d 103, 109 [1965]) says that “[t]he pivotal question is the nature of the work actually performed” (emphasis added)— implying that actual practice is not only relevant, but dispositive (see also Matter of General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117, 120 [3d Dept 1990], affd on op below 76 NY2d 946 [1990] [nature of the work test satisfied because “work envisaged by the project ... is performed by electricians” (emphasis added)]; Matter of Otis E. Serv. v Hudacs, 185 AD2d 483, 485 [3d Dept 1992] [Department’s finding “that the workers did enough work with pipe to qualify as ‘pipe men’ ” upheld as reflecting “the nature of the work” (emphasis added)]). These cases contradict, rather than support, the Department’s theory that it can decide the nature of the work without determining what the prevailing practice is.

The Department, and the majority, also rely on the 1983 amendments to the prevailing wage legislation. These amendments give no support, however, to discarding the prevailing practice test for classification. The amendments relate not to classification of work but to wages and supplements, and provide generally that the “prevailing rate of wage,” and practices with respect to supplements, shall be determined by reference to collective bargaining agreements, subject to certain limitations (see Labor Law § 220 [5]). The statute requiring classification of work (Labor Law § 220 [3-a] [a]) was not materially changed in 1983.1 believe the 1983 amendments are irrelevant to this case.

This does not mean, of course, that collective bargaining agreements are irrelevant to job classification. It is perfectly reasonable, quite apart from the 1983 amendments, for the Department to examine collective bargaining agreements as evidence of what the prevailing practice with respect to job classification is. But if it wants to ignore prevailing practice, the Department must at least suggest some other rational way of classifying work. It has not done so.

Ultimately, the majority’s decision here rests on the rule that we will defer to the judgment of administrative agencies when, with the aid of their expertise, they interpret the legislation it is their duty to implement. I agree that we should defer to the Department if it chose to prefer one means rather than another of determining the prevailing practice—for example, to weigh survey evidence more or less heavily than the evidence of collective bargaining agreements. I would also defer to the Department in its definition of the geographical area within which the prevailing practice is to be determined; the majority may be right in saying that classification must occur before the relevant “locality,” within the meaning of the statute, can be identified (majority op at 57 n 8). But to defer to the Department’s decision to be guided by the “intrinsic nature of the work” in preference to prevailing practice is to defer to an approach that fundamentally makes no sense. Deference, in this context, is acquiescence in purely arbitrary classification, for there is no way to demonstrate that any decision about the intrinsic nature of a particular piece of work is either right or wrong.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Read concur with Judge Graffeo; Judge R.S. Smith dissents and votes to reverse in a separate opinion.

Judgment affirmed, with costs.

      . The Bureau also determined that other work compensated at the glaziers’ rate should have been paid at the rate for masons, laborers or carpenters. Lantry did not challenge these findings.

      . The record indicates that, before preglazed windows were developed, an ironworker would first attach a metal frame to the building’s masonry walls with metal clips and screws, after which a glazier would affix the glass to the frame. Preglazed windows have the window glass installed at the factory thereby eliminating glass installation at the job site. As Lantry testified at the hearing, installation of a preglazed window now involves the attachment of the metal frame containing the window glass to the building’s masonry.

      . The nonunion contractors testified that they paid the glaziers’ rate when working on public projects. They typically paid lower wages when performing similar work in the private sector.

      . The hearing officer also concluded that Lantry’s failure to pay the prevailing wage and supplements was willful based on his failure to pay carpenters’ rates for ceiling tile work and laborers’ rates for washing and cleaning tasks. As a result of this finding of willful conduct, the hearing officer recommended that the Commissioner impose a civil penalty in the amount of 5% of the underpayment. The total amount withheld was $15,599.68, representing wages, supplements, interest and penalties.

      . The Comptroller of the City of New York has the same responsibility within the city (see Labor Law § 220 [3], [5] [e]).

      . The Commissioner does suggest in her brief, however, that empirical evidence may be relevant where “[historical data that correlate with changes in the work process [establish] that the nature of the work (and therefore the trade classification) has evolved over time.” The Commissioner also indicates that numerical data could conceivably be relevant to show that a particular trade does not perform any of the work in question.

      . The dissent indicates that the issue in this case is whether the Commissioner must rely on prevailing practice to classify work, not whether the Department has to conduct surveys. But if prevailing practice is the standard, survey evidence seems unavoidable. In any given case, a contractor could selectively bring in a cadre of witnesses who would testify favorably for the contractor. In fact, Lantry testified at the hearing in Matter of Cortland Glass Co. (PRC Nos. 94-8074A, 95-0790 [Jan. 10, 2000]), a case involving a similar issue, and the contractor charged in Cortland Glass testified at Lantry’s hearing in this case. Accurate determination of prevailing practice—particularly where two unions claim jurisdiction over the same task—would therefore necessitate extensive surveying, a burden the Commissioner reasonably seeks to avoid.

      . Lantry’s approach would also be unworkable because the Commissioner must classify the work in order to determine the pertinent locality. This is because the Labor Law now defines “[l]ocality” as “such areas of the state described and defined for a trade or occupation in the current collective bargaining agreements between bona fide labor organizations and employers of the private sector, performing public and private work” (Labor Law § 220 [5] [d]). Because a trade classification determines the relevant collective bargaining agreement governing a wage rate, the locality cannot be ascertained until after the Commissioner classifies the work. To do as Lantry suggests would require the Department to survey a geographical area before it knows the locality—the territorial scope of the relevant collective bargaining agreement.

      . The dissent states that Lantry presented survey data demonstrating that glaziers performed 94% of preglazed window installation in eastern New York. But that survey collected information exclusively from glazing companies and indicated that 94% of glazier contractors considered such work to be glaziers’ work. The survey did not contemplate contractors who considered themselves to be ironwork firms or who were signatories to the ironworkers’ collective bargaining agreement. If, hypothetically, a survey of such companies similarly indicated that a vast majority considered the identical task to be ironwork, under a prevailing practice test, the inquiry would devolve into an analysis of which contractors actually installed more windows.

      . During the pendency of the appeal in Cortland Glass, the Department in its brief to the Appellate Division repudiated the posture the agency had taken in the case and sought a remand for reconsideration (see Matter of International Assn. of Bridge, Structural & Ornamental Iron Workers, Local Union No. 6, AFL-CIO v State of New York, 280 AD2d 713 [3d Dept 2001] [dismissing for lack of standing a petition brought by ironworker unions that sought review of Cortland Glass]).