Industrial Board of Appeals

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Board Decisions

October 2017
Docket Number Date Issued Case Name Summary of Decision
PR 16-11910/25/2017Ava V. Minango and JAW Sweater Inc.Amended order to comply with Article 19 affirmed. Petitioners, who operated sweater factory, failed to prove they were not claimants' employer. Board found claimants' detailed and specific testimony of their work at factory credible in absence of records required to be kept by petitioners. Petitioners' testimony, in contrast, not credible. Order under Article 19 finding petitioners failed to maintain or produce required payroll records also affirmed.
PR 16-121i10/25/2017Ambush Alarm & Electronics, Inc.Interim. Motion for reconsideration granted; Board's May 3, 2017, decision in matter revoked, where Board dismissed matter due to petitioner's failure to comply with directive to file amended petition. Petitioner alleged it did not receive Board's directive to amend petition. Respondent took no position regarding petitioner's motion. Petitioner stated valid reason to justify failure to file amended petition.
PR 17-02410/25/2017Khemnauth Deocharran and Express Trucking & Courier Inc.Order to comply with Article 6 affirmed, but civil penalty revoked. Claimant truck driver was employee and not independent contractor, where claimant, who used petitioners' truck, made deliveries for petitioners, was not in business for himself, and had no investment in petitioners' business other than his own time and labor. Commissioner's determination of amount of wages owed reasonable where Commissioner relied on claimant's statement in absence of required payroll records. Furthermore, deductions from claimant's wages for lease of truck, damage to truck, and purchase of GPS device, violated Labor § 193. Civil penalty imposed by order to comply revoked as unreasonable where Commissioner did not show statutory factors to support civil penalty properly considered. Order under Article 19 for failure to keep or furnish required payroll records affirmed.
PES 17-00410/25/2017Badrul ChowdhuryPetition denied. Petitioner filed appeal under Labor Law § 27-a (6) (c) alleging notice of violation and order to comply issued by Commissioner finding that petitioner's employer violated several safety and health standards was unreasonable because Commissioner failed to find claimant's employer had violated confined space standard, 29 CFR 1910.146. Petitioner failed to present any credible evidence that his employer had violated confined space standard, and Board found Commissioner's investigator credible that he had inspected location and found no violation of 29 CFR 1910.146.
September 2017
Docket Number Date Issued Case Name Summary of Decision
PR 1601909/13/2017Jaroslaw S. Skorupski and Best Choice Renovation Inc. Order to comply with Article 6 of Labor Law modified to reduce wages due one claimant to correspond to actual period of his wage claim, but otherwise affirmed where petitioners failed to meet their burden of proof to show claimants were independent contractors. Board applied Construction Industry Fair Play Act, Labor Law § 861 et seq., where workers in construction industry presumed to be employees unless employer can show that workers meet all statutory requirements of independent contractor or separate business entity. Petitioners failed to prove workers met statutory tests.
PR 1608509/13/2017Donald Merriam and David Paul and Light House Lake Construction, LLCOrder to comply with Article 6 for unpaid wages affirmed. Petitioners were claimant's employers under Labor Law where they hired, fired, supervised and trained employees; managed daily operations of company and determined rates of pay. Ownership of company not required in order to be employer under Labor Law. Penalty order under Article 19 for failing to maintain or produce required payroll records revoked where record shows DOL did not make proper records request after its demand for payroll records returned by postal service as undeliverable and, therefore, not received by petitioners.
PR 1701709/13/2017John C. Pastor, Sr.Petition dismissed for failure to appear at hearing.
July 2017
Docket Number Date Issued Case Name Summary of Decision
PR 11-17507/26/2017Charles L. Albright and Albright Investigative Associates Inc.Order revoked. Petitioners alleged employees exempt from Minimum Wage Act. Executive and administrative exemptions require that several factors be met, including that employee was paid salary that meets prescribed minimum rate. These exemptions did not apply to petitioners' employees as they were not paid required salary. Flat fees paid to employees not salary for purposes of Labor Law. Private investigators, although performing work requiring advanced knowledge, did not work in field of science or learning and did not have recognized professional status; they did not meet exemption for creative professionals because they did not perform work in recognized field of artistic or creative endeavor. Petitioners met burden to negate reasonableness of inferences drawn by respondent, and established no rational basis in record to support underpayment amounts found due. Respondent had time sheets for at least one employee that showed actual hours worked, including travel time; these were best evidence, but were not used. Respondent also had other records, including timesheets, which, if reviewed and audited, would have provided basis to make required inferences in determining liability for unpaid wages. Audit unreasonable and arbitrary.
PR 14-18407/26/2017Ashraf Mohamed Abdelaal A/K/A Ashraf Mohamed Abdel al and K & J Supermarket, Inc. (T/A Associated Supermarket)Minimum wage order affirmed as modified; minimum wages due reduced; civil penalty, liquidated damages, and interest to be recalculated based on new principal amount; wage and penalty orders affirmed. Petitioners failed to prove claimants properly paid; petitioners did not provide legally required records showing daily and weekly hours worked or employee wage rates. Check record did not list daily or weekly hours or pay rates, making it impossible to tell how earnings computed, and not kept contemporaneously; it could not be credited as accurate or reliable evidence of when claimants worked, or that they were properly compensated. Proper to base underpayment calculation on best available evidence, including credible claims and employee testimony. Claimant's desire to not pursue claim did not negate respondent's power to enforce statute protecting New York employees and law-abiding employers vulnerable to undercutting by noncompliant competitors.
PR 15-31307/26/2017Roberto C. Guendjian A/K/A Roberto Guengin and Grilled Steak, Corp. (T/A Chivito D'Oro)Respondent directed to issue amended minimum wage order; civil penalty, liquidated damages, and interest to be recalculated on new principal amount; penalty order affirmed. Petitioners not denied due process because respondent prevented them from submitting relevant or additional evidence during investigation; due process satisfied by opportunity to contest orders at hearing. Petitioners failed to prove they maintained legally required payroll records and did not begin providing wage statements until two years after claim period. Undisputed that petitioners kept time cards that recorded employees' arrival and departure times for part of claim period. Petitioners did not produce time cards during investigation, but at hearing established them as valid record of employees' arrival and departure times for part of claim period. Board rejected weekly schedule forms as every form identical and line for employee signature filled out only with "/s/;" forms prepared in advance of work performed and not contemporaneous record of how many hours worked in given week. Payroll journals rejected as they did not include all required information and not contemporaneously maintained; only created in response to respondent's investigation. Claimants' testimony best evidence for period for which time cards unavailable, and respondent's determination of amount owed for period affirmed. Order to be modified, however, based on accurate time cards. Respondent credited petitioners with settlement payment, which did not satisfy amount owing in orders. Settlement between petitioner and claimant barred further claims by claimant, but did not bar non-party government agency. Civil penalty based on petitioners' continued bad faith in failing to follow record keeping requirements after previous investigations in 2010 and 2012, and petitioners' failure to provide promised documentation during investigation.
PR 15-40907/26/2017Joel Scher and Event Locations, Inc. (T/A Locations Magazine)Application for reconsideration denied. Petitioners filed petition seeking review of order issued by respondent. Respondent thereafter notified Board that parties had settled; by terms of stipulation, petitioners withdrew petition. In July 2016 decision, Board approved withdrawal of petition and discontinued proceeding; applicant-claimant in underlying enforcement action-sought reconsideration and alleged respondent failed to properly review claim of Labor Law violation. Claimant not barred from seeking reconsideration of decision; his application denied on other grounds. Settlement must be submitted in writing or entered on record at hearing; at any point during proceeding, subject to Board approval, petitioner may withdraw petition. Parties stipulated to settlement, and petitioners sought leave to withdraw petition, which Board approved, leaving no rule, regulation or order before Board for reconsideration.
PR 16-02007/26/2017Ibrahim Issa A/KA Anthony Isaa and Bronxdale Auto Care, Inc.Minimum wage order as to petitioner Issa revoked; minimum wage order as to petitioner Bronxdale Auto Care, Inc. modified to include only wages due for part of claim period; civil penalty revoked; penalty order revoked. Petitioner Issa not statutory employer as his role was limited to that of corporate officer and did not exercise requisite operational control of business to be liable for wages owing. Respondent introduced into evidence one claimant's minimum wage claim form, which set out that Issa hired him, but no employee testified to this at hearing and no investigator with personal knowledge regarding employee interviews testified that Issa hired or fired employees, that he supervised or controlled terms of employment, set rate or method of pay or maintained employment records during relevant period. Uncontested that petitioner Bronxdale Auto Care, Inc. employer only for part of claim period before dissolved. Petitioners under no legal obligation to maintain payroll records for claim period and offered credible and unrebutted evidence that Issa lawfully paid employees. Petitioners raised substantial and credible doubt as to whether, at any point in investigation, respondent's request for records had been reasonably calculated to reach petitioners; respondent failed to timely seek employment records relevant to claim period.
PR 16-03407/26/2017Suechand Toolsee A/K/A Jack Toolsee and Toolsee Wash Corp.Minimum wage and penalty orders affirmed. Petitioners did not maintain time or payroll records showing dates and hours worked or wages paid claimant during time employed by them; petitioner Toolsee's testimony cannot be credited as contradicted often - by petition, by respondent's investigation notes, and by claimant. Board credited claimant's credible, detailed, unrebutted testimony. Respondent's approximation of wages owed reasonable; petitioners failed to overcome approximation.
PR 16-06407/26/2017Arthur Johnson and Unity Home Care Agency, Inc.Unpaid wages and penalty orders affirmed. Petitioners did not introduce evidence showing days and weeks claimant worked during periods in question, her rate of pay for those days or proof of payment for each day. Claimant provided records of time she worked and credibly testified about hours she worked and payments received during her employment. Testimony of petitioners' only witness inconsistent and general; conclusory testimony regarding amount of work performed by claimant insufficient to meet employer's burden of proof. Wage calculation in unpaid wages order affirmed. Petitioners offered no evidence to challenge interest, liquidated damages or penalty order; all affirmed.
PR 17-01907/26/2017Asim Mouhammad Rafiqi and Khiali Pulao Corp.Motion to dismiss late petition granted.
PR 17-021i07/26/2017Kati Mancuso D/B/A Kati's PlaceInterim. Motion for reconsideration granted; Board's December 14, 2012 decision in matter revoked, where Board dismissed matter due to petitioner's failure to comply with directive to file amended petition. Petitioner alleged she did not receive Board's directive to amend petition because owners of property where she had conducted business had unlawfully locked her out of premises and discarded her mail, including Board letter directing her to amend petition. Respondent took no position regarding petitioner's motion. Petitioner stated valid reason to justify failure to file amended petition.
PR 17-06607/26/2017Tracy Cui Yun A/K/A Tracey Cui YunMotion to dismiss petition granted; service of order proper. Petitioner did not dispute facial validity of affidavit of service; petitioner's statement of non-receipt insufficient to overcome presumption of proper service by mail and petitioner's due receipt. Respondent properly served order on petitioner; petition untimely and must be dismissed.
PR 17-07007/26/2017Diego Flores A/K/A Diego Manosalvas and Nazca Restaurant Corp. (T/A Nazca Restaurant)Motion to dismiss late petition granted.
PR 17-07307/26/2017404 Henry Corp D/B/A El Libertador RestaurantPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-07407/26/2017Don Pablo Corp D/B/A El Libertador RestaurantPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-09107/26/2017F & G Supermarket Corp.Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
CI 17-00807/26/2017Carpenter Contractor Alliance of Metropolitan New York, Inc. Corporate Instrument - Name amendment approved.
CI 17-01507/26/2017The Union of Marash Armenians Student Fund Inc.Corporate Instrument - Approved.
June 2017
Docket Number Date Issued Case Name Summary of Decision
PR 12-12006/14/2017Nasir Ali Musaid Omar A/K/A Nasir M. Baqash A/K/A Nasir M. Baqush A/K/A Nasir Muzaid Omar Buqash A/K/A Nasir Ali Muzaid-Omar and Universal Food Mart, Wage and penalty orders affirmed. Petitioners not denied due process during respondent's investigation because they had opportunity to appeal orders to Board. Petitioners employed claimant where credible evidence showed petitioners hired claimant, assigned him job duties, made his work schedule, set his rate of pay, made deductions from his wages, and terminated him. Petitioners failed to keep and/or furnish true and accurate payroll records as required by Labor Law.
PR 15-36606/14/2017Alexander Kaganowicz and Rjak Enterprises, Inc. (T/A Precision Car Wash)Order revoked. Individual petitioner was employer as matter of economic reality where he hired and fired employees, set work schedules, performed payroll, tracked employee hours, hired claimant and set claimant's wage rate and schedule. Corporate petitioner also was employer where petitioners failed to produce evidence of lack of operational control. Petitioners, however, met their burden of proof that claimant paid minimum wage. Petitioners had no legal obligation to maintain records for claim period at time respondent requested records because more than six years had passed from last day of claim period. Petitioners, therefore, not subject to Labor Law § 196-a burden of proof in absence of required records, and met burden to show respondent's determination of wages owed unreasonable. Respondent failed to rebut petitioners' evidence claimant properly paid. Hearing officer's decision to strike claimant's testimony after he failed to appear at continuation of hearing proper. Respondent did not produce claimant at continuation and failed to seek relief from Board in advance of hearing, depriving petitioners of ability to confront witness; proper to strike his earlier testimony; respondent's argument to contrary inapt or lacking in common sense.
PR 16-03006/14/2017JBCStyle NY LLC (T/A JBC Styles)Unpaid wages order and penalty order affirmed. Petitioner did not provide adequate record of hours claimant worked or wages paid and failed to show claimant paid, or that respondent's wage calculation unreasonable. At hearing, petitioner did not produce time records or wage statements with required information; direct deposit transmission records merely show preparation, at unknown date and time, of various sums petitioner allegedly paid claimant and 2015 W-2 form insufficient proof of payment in this matter. Petitioner's records unreliable and insufficient; petitioner failed to meet its burden to prove precise hours worked and wages paid to claimant or otherwise show wage determination unreasonable. Respondent correctly determined claimant not paid all wages owed; petitioner did not offer evidence to challenge imposition of interest or liquidated damages; issues waived. Petitioner offered no evidence of opposition to penalty at hearing. History of previous violations significant factor in setting civil penalty. Petitioner offered nothing other than vague, unsupported testimony that other wage claims should not be relevant; without more, petitioner failed to meet burden.
PR 16-08906/14/2017Gameel M. Omar and Wise Enterprises, Inc. (T/A Dairy King)Orders revoked as to petitioners. Omar credibly testified that as potential purchaser of his business, Kya Jacobs (also named in order to comply, but not petitioner in this matter) wanted to try running business before deciding whether to purchase it, and that he and Jacobs entered short-term contract whereby they split revenue while she operated ice cream shop under name of K.J. Sweets, rather than Dairy King. No employment relationship existed because Omar neither hired claimant, controlled conditions of employment, or suffered or permitted him to work, and respondent failed to rebut petitioners' evidence with credible or reliable evidence establishing that claimant worked for petitioners during period of claim. Claimant and Jacobs did not testify, and claim form and statements to investigators during investigation insufficient to rebut petitioners' credible evidence. With no valid, reasonable basis to find petitioners claimant's employers, orders revoked as to Omar and Wise Enterprises, Inc. (T/A Dairy King).
PR 16-10306/14/2017Serge Durka and Café Crème Brasserie Ltd.Petition dismissed for failure to appear at hearing.
PR 16-11606/14/2017Paul M. Collins Jr. and Aqua-Marina, Ltd.Motion to dismiss late petition granted. Petitioner incorrect that five days must be added to time allowed for filing by mail. Board rules explicit that five days will not be added for mailing of petitions.
PR 16-12706/14/2017Louis Essman, M.D.Petition dismissed. Petition initially filed without copies of orders. Board, therefore, directed petitioner to file amended petition and copy of orders by set date, and dismissed matter when petitioner failed to comply. Petitioner filed application for reconsideration, stating he did not receive letter directing him to file amended petition; respondent took no position on application, and Board granted motion and directed petitioner to file amended petition within 30 days of service of interim decision, and petitioner did not file amended petition as directed.
PR 17-04006/14/2017Milton Rios (T/A Rios Deli Chambalaya)Motion to dismiss late petition granted.
PES 16-01406/14/2017Badrul ChowdhuryMotion to file late answer denied and petition granted where respondent failed to file timely answer after Board granted 60-day extension of time to respond to petition. Law-office failure insufficient grounds to show good cause and does not excuse delay in filing pleading. Failure to timely file deemed waiver of right to participate in proceeding. As respondent failed to deny factual allegations, these were admitted; petition granted.
CI 17-01006/14/2017The English-Speaking Union of the United States Albany Branch, LLCCorporate Instrument - Approved.
CI 17-01106/14/2017The English-Speaking Union of the United States Buffalo Branch, LLCCorporate Instrument - Approved.
CI 17-01206/14/2017The English-Speaking Union of the United States New York Branch, LLC Corporate Instrument - Approved.
CI 17-01306/14/2017The English-Speaking Union of the United States Rochester Branch, LLCCorporate Instrument - Approved.
CI 17-01406/14/2017The English-Speaking Union of the United States Syracuse Branch, LLCCorporate Instrument - Approved.
May 2017
Docket Number Date Issued Case Name Summary of Decision
PR 13-00705/03/2017Houcine Rached and Spectrum Jewelry, Inc. Orders revoked; petition granted. Petitioners met burden of proof in showing they did not employ claimants. Rached credibly testified that two separate businesses operated at same location (electronics and cell phone store owned/operated by another, doing business as Electronics Spot, as well as Rached's business, Spectrum Jewelry), that he had no involvement with other business, that he employed only his relatives, and that individuals interviewed by respondent worked for other business. Rached's testimony unrebutted and record supported description of two separate, unrelated entities at same location, including testimony of respondent's investigator. Petitioners showed they were not claimants' employers; respondent did not rebut their proof.
PR 14-24505/03/2017Jagtar Singh Minimum wage order modified; penalty order affirmed. Respondent's investigator testified petitioner showed her, during site visit, cash book showing claimant's weekly earnings; she was not given copy. Petitioner introduced into evidence business records showing claimant's daily earnings; they did not consistently or credibly track hours worked or comply with payroll records regulations; could not be credited as accurate or reliable evidence claimant properly compensated. Petitioner also argued claimant independent contractor or, that he did not employ claimant prior to start of business operations in 2010, but failed to provide credible evidence in support of either argument. Claimant' unrebutted testimony indicates petitioner exercised his authority to hire and supervise employees and control employment conditions. As matter of economic reality, petitioner was employer and claimant not independent contractor. Petitioner's sale of business did not immunize him from determination that he was employer. Sale did not relinquish petitioner's supervisory role over claimant. Respondent's determination that petitioner individually liable as employer reasonable and valid. Minimum wage order to be modified as petitioner liable for underpayment of wages up until date claimant stopped working for him.
PR 14-27405/03/2017Dora E. Idez and Javier Roman Idez (T/A Subway)Minimum wage order, unpaid wages order, unlawful deduction order, and penalty order affirmed; petition dismissed. Petitioners' only witness had no personal knowledge of facts relevant to orders, did not manage employees and not involved with payroll. Signature and date in document, without more, not determinative of employee's start date. Petitioner's payroll summary and check purportedly issued claimant not supported by testimony from witness personal knowledge, and neither indicated pay period was covered, or if check received and negotiated. Petitioners produced no evidence of precise work performed or wages paid to claimant. Petitioners failed to show claimant not entitled to wages claimed and did not challenge unlawful deduction order, interest for wage orders or imposition of liquidated damages. Petitioners objected to penalties, but offered no evidence at hearing and failed to introduce required records and required wage statements or to show they did not take prohibited deductions and provided sufficient meal time.
PR 14-347 and PR 15-40105/03/2017Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant Inc.)Petitions dismissed for failure to appear at hearing. Respondent moved, without opposition, to amend orders; by interim decision, Board approved issuance of amended orders. Respondent failed to file proof of service on petitioners of amended orders; Board advised petition would be granted if amended orders not served within 30 days. When orders served late without explanation, Board granted petition. Petitioners opposed amended orders; respondent answered and moved, without opposition, for reconsideration of dismissal of first petition and for consolidation of matters. By interim decision, Board granted motion and revoked earlier interim decision in favor of deciding matter on merits. Hearing scheduled; petitioners failed to attend.
PR 15-00805/03/2017Alessandro Altigieri and Baci da Roma LLC (T/A Carbone Restaurant) Minimum wage order, unpaid wage order and penalty order affirmed. As matter of economic reality, claimant employee and petitioners responsible for wages owed. Altigieri owned and operated restaurant; he asked claimant to help in restaurant, answering phones, taking food deliveries and orders, speaking with customers and other work, as needed. Petitioners alleged her work not part of customary business of operating restaurant, but work can be integral to business even if just one component of business. Claimant' duties sufficiently integral to operating restaurant as to show her employee. Intermittent character of working relationship among petitioners and claimant not related to claimant's independent-business initiative. Petitioners offered no evidence business relationship on project basis or otherwise limited in duration, other than due to claimant's schooling or failure of business relationship. Claimant did not exercise independent business skills, judgment or initiative and petitioners presented no evidence to show claimant in business for herself; petitioners' evidence underscored her economic dependence upon petitioner. Petitioners challenged wage calculation, but general, incomplete and contradictory testimony and conjecture insufficient to show calculation unreasonable. Minimum wage order found petitioners also failed to pay second claimant statutory minimum wage; petitioners did not challenge order as to this claimant. Wage order indicated petitioners owed claimant for unlawful tip appropriations. Witness testified he received allotment of tips in paycheck and tips separately identified as such. Petitioners put forward no evidence of how tips divided, or among whom. Tips paid to one employee not dispositive as to another.
PR 15-245 05/03/2017John Ellis A/K/A John C. Ellis Sr. (T/A J Ellis & Sons) Orders affirmed. Petitioner contractor did not show claimants independent contractors who met all three sections of ABC test, or separate business entities meeting all 12 factors of statutory definition of separate business entity. Under ABC test, claimants independent contractors if not under petitioner' direction and control in performing painting services, if painting work outside usual course of petitioner's painting business, and if claimants customarily engaged in independently established occupation similar to painting work they performed for petitioner. Several claimants provided credible and unrebutted testimony that petitioner supervised their work on jobs he had subcontracted to others. Petitioner also determined price of each job directly with customer with no negotiation or input from claimants. Claimants did not provide service outside usual course of petitioner's business. While record had some evidence one claimant may have had painting company and insurance, petitioner produced no testimony from that claimant about independent business and not one claimant testified he had independently established business; that claimant may have had insurance not dispositive of independent contractor status. Claimants not free from direction or control over means and manner of providing service, subject only to petitioner's ability to specify desired result. Petitioner produced no evidence any claimant had substantial investment of capital beyond ordinary tools and equipment, and no evidence any claimant included services rendered on federal income tax schedule as independent business or profession. After analyzing first factors, no need to consider others as petitioner could not prove claimants met all statutory requirements for separate business entity under Fair Play Act.
PR 15-287 05/03/2017Frank Lobosco and 1378 Coffee, Inc. (T/A Juliano Gourmet Coffee)Minimum wage order modified, with interest and liquidated damages reduced proportionally and interest to start from September 5, 2014; penalty in minimum wage order revoked; penalty order affirmed. Petitioners failed to establish precise hours worked by claimant, that he was paid for those hours or that inferences supporting calculation of wages by respondent in minimum wage order otherwise unreasonable. Petitioner conceded he did not maintain required time records, and asserted he did not owe overtime wages because claimant did not work beyond business hours, received hour for lunch and paid in full for each week of work. General, incomplete, and conclusory testimony concerning work performed by employee insufficient to meet employer's burden of proof; mere assertions of alleged work schedule or that employee never worked overtime insufficient. By administrative error, final order directs payment of $33,236.22 in wages due; investigation revealed correct underpayment was $16,002.49. Order modified accordingly; amended order to be issued and interest and liquidated damages reduced proportionally. At hearing, investigator did not explain considerations used to set penalty amount; thus, penalty in minimum wage order revoked.
PR 15-39005/03/2017Rong H. Zheng and Rong Trading Corp.Minimum wage order modified against petitioners, reducing wages owed, with interest, liquidated damages and penalty reduced proportionally; penalty order affirmed; petition dismissed. Claimant's testimony detailed, specific, and unrebutted; petitioners failed to establish by credible evidence that they did not employ him before date Rong Trading Corp. incorporated. Petitioner Zheng did not testify and petitioners submitted no evidence other than DOS report indicating Rong Trading Corp. was registered as active corporation in October 2011. Report not proof petitioner did not employ claimant prior as individual employer; report merely evidence of incorporation date. Petitioner Zheng "boss" and at company warehouse every day. Petitioner handled money, assigned duties, supervised work, set rate of pay, and petitioner or his wife paid claimant. Claimant described warehouse operations, hours of work and duties in detail, which included opening and closing warehouse, loading and unloading trucks, storing merchandise, cleaning building, and assisting drivers with deliveries. After disabling injury at work, claimant terminated. Minimum wage order affirmed, but modified as to wage amount owed. In absence of accurate records, respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence drawn from employee statements or other evidence, even if results approximate. Petitioners failed to overcome approximation with sufficient and reliable evidence establishing precise hours worked, and that claimant paid, or with other credible and reliable evidence showing respondent's determination unreasonable. As claimant acknowledged last day of work December 31, 2012, Board modified wages owed.
PR 16-11405/03/2017Anh Thu Tran A/K/A Anh Thi Tran and Hang Tran D/B/A Elite Nail Spa #2Petition dismissed for failure to appear at hearing.
PR 16-12105/03/2017Ambush Alarm and Electronics, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-127i05/03/2017Louis Essman, M.D. Interim decision. Request for reconsideration granted after Board dismissed petition for failure to file amended petition and requisite copies of orders to comply.
PR 16-13005/03/2017Joseph Silvestro and 96 Vreeland Street Corp. (T/A Rosamaria Bakery)Petition dismissed for failure to appear at hearing. Petitioners requested adjournment due to medical condition of witness; hearing officer denied request. Petitioners then requested adjournment claiming unavailable witness was employer, and to find otherwise before hearing would prejudice petitioners' case. Hearing officer responded by noting witness not named as employer in order to comply, and required hearing to go forward as scheduled. Petitioners did not appear at hearing.
PES 14-014 05/03/2017Town of Lee Petition denied. Petitioner failed to show it was unreasonable for respondent to determine that complainant employee met prima-facie requirements; respondent reasonably determined there was sufficient nexus between protected activity and adverse employment action (termination). Respondent's conclusion that termination causally related to protected activity reasonable as causation element of prima facie retaliation can be shown indirectly when discriminatory treatment closely follows protected activity. Petitioner failed to show legitimate, nondiscriminatory reason for termination; its reason-economic efficiency-pretextual. Respondent's prima facie case, together with unanswered questions and evidentiary gap related to termination suggest intentional, unlawful discrimination.
CI 17-005 05/03/2017Teamsters Alliance for Pension Protection, Inc. Corporate Instrument-Approved.
CI 17-006 05/03/2017Queens South Supervisors Association Inc. Corporate Instrument-Approved.
March 2017
Docket Number Date Issued Case Name Summary of Decision
WB 17-00103/24/2017Community Housing Improvement Program, Inc.Petition to review December 2016 modified minimum wage order for building service industry dismissed. Minimum wage order not contrary to law where building service industry apartment allowance, specified as value of rental rates as of June 1, 1975, not monetary amount respondent must proportionally raise pursuant to Labor Law 652 (2) when legislature increases minimum wage.
PR 14-09603/01/2017Orazio J. Petito, Jr. and Peto Management Corp. Minimum wage, unpaid wage and penalty orders affirmed; petition denied. Employer status of corporate petitioner uncontested; Petito found to be employer as he owned buildings in which claimants worked and corporate entity that managed those buildings, and as he hired claimants, set their rates of pay and method of payment and assigned or re-assigned tasks. Building service industry wage order applies to employees in building service; employers required to pay employees for each hour worked wage not less than minimum wage, which, for residential building janitor, based on number of units in building(s) she or he serves. Janitors in residential building not entitled to overtime. With some restrictions, apartment furnished by employer to employee in residential building, and occupied by her or him may be part of minimum wage. As petitioner did not produce required payroll records or meet evidentiary burden, respondent's calculation of wages for work performed to be credited. Petito testimony conclusory or vague and included number of admissions in respondent's favor.
PR 14-10103/01/2017Long Cove Deng and New York Mart, Inc. Wage and penalty orders affirmed; petition denied. Petitioners failed to provide accurate, reliable payroll records; respondent entitled to calculate underpayment based on best available evidence. Petitioners' only witness manager with no role in payroll and not involved in termination of claimant, whose credible testimony unrebutted by petitioners.
PR 14-15903/01/2017Kevin J. Silvar and Joseph P. Romano and Visionpro Communications Corp.Minimum wage, wage and penalty orders affirmed; petition dismissed. Petitioners contend defense of release bars claimants from pursuing claims, claims barred or precluded by res judicata, claim-preclusion bars respondent from prosecuting this action on behalf of claimants. Defense of release effective when legally enforceable, applies to claimants and encompasses claims asserted below. Parties do not dispute that release legally enforceable and encompasses legal claims at issue; sole question whether release applies to claimants. Petitioners did not meet burden to show they acted with reasonable diligence to provide notice to claimants. Petitioners introduced list of employees provided to claims administrator to administer settlement. List contains no information to show its author, date of creation or delivery, and date submitted to claims administrator not verified, making document unreliable. Given inconsistencies of witness testimony, list of purported class members cannot be considered accurate or reliable evidence showing claimants were timely sent notice reasonably calculated to apprise them of pendency of action and afford opportunity to object.
PR 15-03403/01/2017Fabian Bravo and IFK Handbags CorpPetition dismissed for failure to appear at hearing.
PR 15-15103/01/2017Kenneth PieriWage and penalty orders revoked as to petitioner Pieri; petition otherwise granted. Petitioner credibly testified that he manages rental property, making repairs and reviewing applications from prospective tenants; he has office in building's basement in proximity to, but unrelated to, office of another named in orders; Pieri never on that petitioner's payroll, did not provide management or supervision or acted on behalf of, another named in orders. Petitioner did not hold himself out as associated with others in orders, and provided them with no work, labor or services. Petitioner did not instruct claimant how to perform her duties; once, as favor to another named in orders who was "short on money" and on condition that he be repaid, petitioner issued check to claimant for $186.00. Burden shifted to respondent to show petitioner had requisite authority over claimant's employment to be deemed employer; respondent did not meet burden. Claimant did not testify; identified another as responsible party on claim form. Petitioner did not step into shoes of employer, and his having reported to respondent that another entity owed wages cannot be understood to be admission that he employed claimant. While petitioner issued check to claimant for wages, record has insufficient evidence to conclude petitioner possessed requisite day-to-day operational control to find him liable for unpaid wages. Based on totality of circumstances, including petitioner's unrebutted, credible testimony, unreasonable to consider petitioner employer.
PR 16-035i03/01/2017Anthony LeoneInterim Decision. Petitioner denied being employer and named another as employer; respondent moved, and was granted permission to, amend and reissue orders. Interest suspended until respondent files answer.
PR 16-04403/01/2017Baron AssociatesRespondent served orders by mail at petitioner's last known place of business and provided affidavit of service showing orders served by mail on "Baron Associates LLC" at Yonkers, New York address; orders not returned. Petitioner admitted it owned or managed property at that address. Board directed parties to brief question of whether service effective; petitioner failed to do so, even after seeking, and receiving, more time to do so. Petitioner did not show address where orders served not its place of business or that mailing orders to such address not reasonably calculated to give notice. Service proper.
PR 16-076i03/01/2017Celia Durao, Durao Building Enterprises Inc. and Durao Concrete CorporationInterim Decision. Respondent moved for order allowing her to amend and reissue orders to substitute Durao Concrete Corporation as liable corporate employer. Board approved amendment and reissuance of orders. Interest suspended until respondent files answer.
PR 16-09103/01/2017Felix J. Terraferma Jr. and Blue Chip Fish & Clam Co. Inc. (T/A Blue Chip Fish Market)Motion to dismiss untimely petition granted. Petitioners acknowledged doing business out of address used for service despite leasing part of it to another entity. Respondent provided affidavits of service showing Terraferma and Blue Chip Fish & Clam Co. Inc. were each served by regular mail at same address; orders not returned. Petitioners' statement that orders not received insufficient to overcome presumption of proper service. Petitioners did not dispute facial validity of affidavits of service. Service proper.
PR 16-10703/01/2017Michael Mangione D/B/A Allstate PaintingPetition dismissed where petition late and service proper.
PR 16-14003/01/2017Rajendra Mistry and Enaura Bridal Inc.,Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PES 14-016 03/01/2017South Glens Falls Fire Company, Inc.Petition dismissed after Board found requisite nexus between petitioner's adverse actions against complainants and their filing of health-and-safety complaints. Petitioner did not dispute that complainants engaged in protected activity or suffered adverse employment actions; petitioner failed to show it did not know complainants' identity and presented no credible evidence to show legitimate, non-discriminatory reason for demoting and expelling complainants.
CI 17-001 03/01/2017Empowered Construction Workers Association Local 102, Inc. Corporate Instrument-Approved.
CI 17-002 03/01/2017Montgomery County Deputy Sheriff' Police Benevolent Association, Inc.Corporate Instrument-Approved.
CI 17-003 03/01/2017James Connolly Irish American Labor Coalition, Inc. Corporate Instrument-Approved.
CI 17-00403/01/2017Long Island Labor Advisory Council, Inc. Corporate Instrument-Approved.
February 2017
Docket Number Date Issued Case Name Summary of Decision
PR 16-12002/16/2017Global Cash Card, Inc.Payroll card regulations revoked because Commissioner of Labor exceeded scope of Labor Law Article 6 by regulating financial services products.
January 2017
Docket Number Date Issued Case Name Summary of Decision
PR 13-17901/25/2017Brendan Spiro Unpaid wages and penalty orders affirmed. Petitioner alleged he was only a consultant to restaurant owner, but testimony including his own showed that he sufficiently controlled working conditions of two employees, hired them, supervised their work and determined their rates and methods of pay. Petitioner present at restaurant on continuous basis after expiration of "consultant agreement." That others may have acted as employer does not relieve petitioner of liability as employees may have more than one employer. Petitioner did not dispute that wages owed or manner in which respondent calculated unpaid wages; petitioner, as employer, is liable for those wages. Penalty order is affirmed as any payroll records not produced by petitioner during investigation or at hearing; petitioner claimed no access to records after restaurant closed, but made no attempt to subpoena records.
PR 15-03101/25/2017Mohammad Mansoor Mirza A/K/A Mohammed M. Mirza and 99 Cent Mini Depot Inc.Minimum wage and penalty orders affirmed. Respondent moved to dismiss petition at close of petitioners' case, the only evidence of which was testimony from two witnesses, on grounds that petitioners failed to establish prima facie case or meet burden of proof showing minimum wage and penalty orders invalid or unreasonable. Petitioners opposed minimum wage order arguing they were not employers as they did not own place of employment during claim period. Petitioners' two witnesses did not offer relevant or probative evidence sufficient to show this and petitioners presented insufficient evidence to contradict or rebut respondent's determination that they employed claimant. Motion to dismiss granted.
PR 15-09801/25/2017Ramon Benitez A/K/A Raymond Benitez and Caroray Corp.Wage and penalty orders affirmed. In absence of legally required payroll records for relevant period, employer bears burden of proving disputed wages paid and respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence, even if results approximate. Employer must show evidence of precise amount of work performed or precise wage paid to negate reasonableness of inferences drawn from employee evidence. Petitioner Benitez testified that he agreed to pay claimant flat weekly wage regardless of hours worked; he then deferred paying her due to insufficient funds. Claimant testified partial wage payments made, but denied wage payments were deposited into her bank account or that she signed agreement regarding wages; petitioners did not rebut her testimony. Petitioner not entitled to withhold payment to claimant on basis she misappropriated funds.
PR 15-22501/25/2017Thomas C. Fricker A/K/A Thomas Carlton (T/A T Carlton' Spalon)Petition dismissed for failure to appear at hearing.
PR 15-23801/25/2017Filippo Lia A/K/A Philip Lia and Filippo', Inc.Petition dismissed for failure to appear at hearing.
PR 15-31101/25/2017Rodney Brayman and Phoenix Beverages MTO, LLC and Phoenix Beverages, Inc., (T/A Phoenix Beehive and Phoenix Beverages Lobo)Supplemental wage order affirmed as modified; penalty order revoked. Upon resigning, claimants sought vacation and personal-time pay, per employer's written vacation policy; employer argued that vacation days were accrued pro rata during year worked. Employer's position rejected; employee must be paid for accrued vacation upon separation unless employer's written policy specifies that accrued vacation forfeited. Employer's vacation policy repeatedly set out in employee handbook did not specify that vacation time to be earned pro rata over course of year, as opposed to being earned and available on January 1. Additionally, employer's summary of time off indicated claimants had earned 120 vacation hours and 8 personal hours as of first week of January. Any ambiguity in vacation policy to be construed against drafter of policy. Petitioners' purported past practice of pro rating vacation pay not substantiated by payroll records and contradicted by admission that another employee paid full year of vacation when he had worked for only part of year. Contradictory evidence of past practice did not overcome plain meaning of policy. Respondent provided no valid or reasonable explanation for supplemental wage order's civil penalty. Employer adhering to position with which respondent disagrees does not reach level of "willful or egregious" violation and petitioner had no prior Labor Law violations; supplemental wage order penalty revoked. Liquidated damages portion of order revoked as respondent presented no evidence of petitioners' bad faith. Penalty order revoked as petitioners provided required payroll records and respondent did not prove otherwise.
PR 15-33801/25/2017Hassan Osman and Adel Fathelbab and Bahaa Elansary and Moataz Bella Mahmoud and Z-One Diner & Lounge Inc. (T/A Z One)Petition dismissed for failure to appear at hearing.
PR 16-06701/25/2017Roslyn RogersMotion to dismiss granted. Matter previously litigated and decided by 2013 Board resolution of decision.
PR 16-12701/25/2017Louis Essman, M.D.Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-12901/25/2017Anthony Grigoli and Safeway IndustriesPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PES 14-01501/25/2017SUNY College of Environmental Science and ForestryPetition granted. Prima facie case of retaliation established as no dispute that claimant engaged in protected activity (raising safety and health concerns), that petitioner aware of complaints, that claimant suffered adverse employment action (termination) and that causal nexus between protected activity and adverse action established by relatively short period between complaints and adverse action existed. Burden shifted to petitioner to show legitimate non-discriminatory reason for termination. Petitioner produced credible evidence that it terminated employee because she did not return to work after approved FMLA leave ended as required by its well-established FMLA leave policy. Petitioner also offered credible evidence of its practice of encouraging employees to report safety and health issues, of promoting health and safety compliance and of not retaliating against reports of health and safety concerns. Undisputed that employee did not communicate with petitioner after she left on approved leave; respondent did not rebut or offer evidence petitioner used policy to terminate employee as pretext for retaliation. Petitioner met burden in proving non-discriminatory reason for termination, which had nothing to do with protected activity; respondent's unreasonable determination revoked.
December 2016
Docket Number Date Issued Case Name Summary of Decision
PR 14-06112/14/2016Gary Hsin Liang A/K/A Gary Liang and Happy Lemon Inc.Order modified to reduce penalties. Petitioners retaliated against claimant for having filed a minimum wage claim against them. Labor Law § 215 (1) (a) and (b), read together, allow respondent to assess maximum civil penalty of $10,000.00 for retaliation, unless employer had illegally retaliated against employee in prior six years. As there was no showing that petitioners violated statute in prior six years, and as statute does not allow respondent to assess two civil penalties of same amount for single violation of statute, order modified to reduce total penalty due from $20,000.00 to $10,000.00. Maximum civil penalty (of $10,000.00) supported by record where respondent showed retaliation to be severe and egregious, and exercises her discretion to punish retaliation by imposing maximum civil penalty.
PR 14-21612/14/2016Tracy Krawitt and Spacey Tracy's, Inc. (T/A Spacey Tracy's PicklesUnpaid wages order, supplemental wage order and penalty order affirmed. Petitioners failed to maintain required payroll records showing wage rate of each employee, number of hours worked daily and weekly (including the time of arrival and departure for each working spread of hours exceeding ten), amount of gross and net wages paid, and to provide each employee statement with payment of wages showing hours worked, rates paid, gross and net wages, any allowances claimed and deductions. Petitioners failed to produce such records, alleging, rather, that an employee of respondent (stationed in county in which investigation did not originate), had copies of their payroll records. This does not satisfy petitioners' burden; the other employee did not testify and her appearance was not compelled by petitioners. Petitioner Krawitt herself testified that she did not keep records for entire claim period, and relied on dry-erase board in her home to track employees' work hours. Lacking evidence to the contrary, Boart found petitioners failed to maintain required payroll records. Having failed to produce legally sufficient payroll records, petitioners were to negate reasonableness of respondent's inferences drawn from claimant's evidence. Petitioners failed to meet this burden; instead, petitioners offered inconsistent, conflicting and overly general testimony, while claimant's was specific and detailed. Respondent's determination of unpaid wages affirmed. Regarding supplemental wages, claimant's testimony that she paid for gas for petitioners' vehicle when travelling to county fair work sites was credible and specific, while petitioners' was irrelevant and their argument that gas expenses were not an employer's responsibility wrong. We find respondent's determination that claimant was not reimbursed for gas expense reasonable and valid. Petitioners did not present evidence to challenge interest assessed in orders, thus waiving issue. Petitioners failed to prove required good-faith basis to believe that underpayment in compliance with law; 25% liquidated damages affirmed. As petitioners did not present evidence to challenge respondent's determination of civil penalties and as testimony showed respondent relied upon requisite statutory factors in determining civil penalties, civil penalties affirmed in each order. Penalty order affirmed as petitioners did not maintain required payroll records.
PR 15-07312/14/2016Spiridon Varlas A/K/A Spiro Varlas and AAA Food Delights Inc. (T/A Euro Delights)Minimum wage order and penalty order affirmed. Petitioners' asserted that claimant did not work at petitioner's restaurant; petitioner Varlas testified that he did not know and had not even seen claimant prior to compliance conference; petitioners maintained no employment records. Respondent presented credible and reliable evidence sufficient to establish that petitioners employed claimant. At hearing, claimant affirmatively identified Varlas as his boss and credibly and specifically testified that Varlas was person who had hired him to work as dishwasher, porter and delivery man. Petitioner Varlas's testimony that he was sole employee, and was assisted by family members, was contradicted by claimant's testimony that restaurant had several employees, each of whom claimant identified by name. Petitioners produced tax records, but these are not dispositive as they contain unreliable hearsay and are not persuasive. Respondent showed, with claimant's unrebutted, specific, credible testimony, by preponderance of evidence, that claimant was employee. Petitioners did not challenge wages, interest, liquidated damages and civil penalties; thus, minimum wage order affirmed in entirety.
PR 15-07912/14/2016Syndie Molina A/K/A Dr. Syndie G. E. Molina and Family Fitness Unlimited LLCBoard's interim April 2016 decision granting reconsideration rescinded; its September 2015 decision dismissing petition for failure to appear reinstated. After petitioner Molina failed to appear at July 2015 hearing, Board dismissed petition. Petitioners requested, and were granted, reconsideration due to petitioner Molina having been abroad on hearing date, on an emergency basis, and to her involvement in a motor vehicle accident upon her return. Board rescheduled hearing for August 2016; shortly before hearing, respondent moved to rescind Board's April 2016 decision and reaffirm September 2015 decision after respondent learned petitioner Molina was not abroad for July 2015 hearing, but was present and available for work in New York City. After petitioners failed to refute respondent's allegation, Board found petitioner Molina was in New York City on day of July 2015 hearing and reinstated its September 2015 decision dismissing petition for failure to appear.
PR 15-20512/14/2016Bulganin B. Chandok, Sr. a/k/a Bulganin Chandhok, Sr. and Reena B. Chandok, Sr. a/k/a Reena Chandhok, Sr. and Triple V Enterprises LLC (T/A Universal Minimum wage, wage and penalty orders modified to limit periods for which two petitioners liable; otherwise affirmed. B. Chandhok confirmed to be employer after credible testimony that he interviewed, hired and set employee work schedule and conditions of employment undermined his assertion that he had no role in business before October 2011. His role as employer did not change regardless of which corporation operative as he had power to hire and fire employees, supervised and controlled work schedules and conditions of employment, determined rate and method of pay and maintained employee records. Orders modified to reflect Royal Services, Inc. liable prior to October 17, 2011 (date Molly Maid franchise expired and Chandhoks began operating cleaning business) and liability of Triple V Enterprises, LLC limited to period starting October 17, 2011 (date Universal Maids established). Minimum wage must be paid for time employees permitted to work, or required to be available for work at place prescribed by employer, and must include time spent traveling, to extent travel part of duties. Undisputed that cleaners required to report and return to home office daily for instructions and supplies and to pick up and return car used to perform duties. Travel time to and from office and from site to site during work day to be included in hours worked. While petitioners free to base wages on percentage of what customers paid, not excused from obligation to pay at least minimum wage and must pay overtime premium for hours worked over 40 a week, spread-of-hours pay and a weekly allowance for failure to launder or maintain required uniforms. In disputing number of hours worked, petitioners sought to rely on assignment sheets, which lacked specific times for jobs, included cross-outs, deletions and obscurities, were incomplete or implausible or did not reflect travel time; these not best evidence in case with credible and consistent testimony from claimants and sworn claim forms. Without adequate payroll records, respondent may rely on best available evidence and draw approximation of hours worked and wages owed from claims forms.
PR 15-236 and PR 15-25612/14/2016AJ J. Black A/K/A/ AJ Black and Il Tesoro Ristorante and Bar, LLC (T/A Il Tesoro Restaurante)Petitions dismissed for failure to appear at hearing.
PR 16-03212/14/2016Angel Salgado and Coamex Restaurant Inc. (T/A/ Casa Colombia)Petition dismissed for failure to appear at hearing.
PR 16-060i12/14/2016Jimmy La (T/A Nails 4 U)Interim. Petitioner's application for reconsideration granted. Petition dismissed as untimely in Board's September 2016 decision; petitioner applied for reconsideration, which respondent did not oppose. Petitioner explained that while he was aware of orders issued against him and his wife, he did not have orders in his possession due to his separation from his wife and their pending divorce. Petitioner retained counsel and, when his attorney attempted to obtain copy of orders from respondent, respondent sent said copies to incorrect address. When error was noted and corrected, statute of limitations had run; petitioner filed late petition, which was dismissed as untimely. Board found petitioner made good faith attempt to file timely appeal and granted application.
PR 16-10612/14/2016Pomadoro Ristorante & Pizzeria Inc. (T/A Pomodoro Restaurant & Pizzeria)Motion to dismiss untimely petition granted.
CI 16-01912/14/2016Ontario County Lieutenants Police Benevolent Association, IncCorporate Instrument- Approved.
CI 16-02012/14/2016Coalition of Taxi Drivers NYS Inc.Corporate Instrument- Approved.
CI 16-02212/14/2016Hudson Falls Police Benevolent Association, Inc.Corporate Instrument - Approved.
CI 16-02312/14/2016The Brotherhood of Western New York Water Workers, Inc.Corporate Instrument - Approved.
CI 16-02412/14/2016Workers Center Of The Southern Tier Of New York, Co.Corporate Instrument - Approved
October 2016
Docket Number Date Issued Case Name Summary of Decision
PR 12-09010/26/2016Wah Chan Wong and H.K. Tea and Sushi, Inc.Minimum wage, tip appropriations and penalty orders revoked as to Wong; civil penalties in minimum wage and tip appropriations orders revoked and orders otherwise affirmed as to H.K. Tea and Sushi, Inc.; penalty order affirmed as to H.K. Tea and Sushi, Inc. Based on totality of circumstances, respondent's conclusion that Wong individually liable as employer unreasonable. Wong lacked requisite authority over claimants' employment; he was minority shareholder in restaurant, but had minimal financial and operational role therein, which was managed by co-owner, who purchased supplies, interviewed, hired, fired and directed employees and set their wages. Wong worked long hours at his bakery nearly every day, was infrequently at restaurant and did not keep, and was not responsible for, its employment records. Wong did not speak, read or write English and signed documents for restaurant solely at behest of co-owner. Respondent's evidence did not show Wong was supervisor or manager of restaurant and testimony regarding this by investigators and one claimant insufficient to counter Wong's specific and credible testimony. Wong's having provided certain records to investigator insufficient to show him to have been responsible for keeping and maintaining such records during claim period. Underpayment calculation affirmed as to corporate petitioner given lack of required payroll records and general testimony. Wong did not partake in distribution, tip appropriations order revoked as against him, but affirmed as to H.K. Tea and Sushi, Inc. Respondent failed to consider statutory factors, and civil penalties in orders revoked.
PR 14-21710/26/2016Hisham S. Ghazelle Minimum wage, unpaid wages, and penalty order affirmed. Petitioner was employer because he owned restaurant, hired claimant and had authority to fire him, supervise and control his work schedule and conditions of employment, and determine manner and means of payment and maintain employment records, regardless of whether he exercised those powers during period claimant employed at his restaurant. Petitioner produced no payroll records and claimant's credible and detailed testimony was unrebutted. Liquidated damages in unpaid wages order not affirmed where no amount of liquidated damages set out in total due.
PR 14-30110/26/2016Perry R. Stuart and Long Island Limousine Service Corp. Wage and supplemental wage orders revoked; penalty order affirmed. Petitioners presented credible testimonial evidence that claimant did not work on day for which wages claimed, which respondent failed to rebut. While respondent offered testimonial evidence from claimant and investigator, respondent did not produce at hearing claimant's notebook, in which claimant had kept independent record of time worked, and would have been best available evidence. For supplemental wage order, petitioners presented unrebutted evidence that company policy stated claimant not entitled to benefits; respondent' order also showed that claim period did not include holidays for which claimant sought wages, making supplemental wage order invalid on its face.
PR 15-09710/26/2016Winston Castillo and E-Z Parking Lot Corp. (T/A E-Z Parking & Auto Sales)Civil penalty in minimum wage and unpaid wages orders revoked; orders otherwise affirmed. Penalty order revoked. Petitioners were claimant's employers. Castillo's inconsistent and contradictory testimony insufficient to meet petitioners' burden of proof where claimant's testimony credible, consistent and specific with regard to parking attendant work for petitioners, as well as duration, terms and conditions of that employment. Amounts owing under minimum and unpaid wage orders were based on best available evidence, using information from claim forms as corroborated by claimant' credible testimony at hearing. Civil penalties in minimum wage and unpaid wages orders revoked where respondent failed to show requisite considerations in determining penalty amounts; penalty order also revoked where respondent failed to show due consideration given to statutory factors.
PR 15-15910/26/2016Luping Huang a/k/a Luping Huang-Ferreira and Amazing Touch Spa Inc. Petition dismissed for failure to appear at hearing.
PR 15-220i10/26/2016Americo E. Pullini and Edward A. Pullini and Pullini Subsurface Contractors, Inc.Interim. Petitioners' motion for reconsideration granted; September 2016 Resolution of Decision revoked; July 2015 petition reinstated. When petitioners failed to attend hearing, adjournment granted, conditioned on petitioners' payment of court reporter and interpreter fees. After petitioners failed to pay those fees, petition dismissed for failure to appear at scheduled hearing. Petitioners timely requested reconsideration, and Board granted request, conditioned on payment of reporter and interpreter fees by date certain, which fees then were timely paid.
PR 15-26910/26/2016Jocelyne WildensteinCivil penalty in unpaid wages and supplemental wage orders revoked; orders otherwise affirmed. Penalty order affirmed. Petitioner failed to meet burden of proof to show she was not employer where claimant provided unrebutted, detailed, credible testimony regarding work for petitioner as her personal assistant, manner in which she entered work site, conditions of employment and how she was hired and supervised; petitioner' evidence, consisting principally of testimony by property manager, too speculative and inconsistent. Respondent's estimation of wages owed reasonable after claimant's detailed and credible testimony regarding hours worked and amounts petitioner failed to pay, and after petitioner offered no proof to contrary. Civil penalty in unpaid wages and supplemental wage orders revoked when it could not be shown at hearing how respondent assessed those penalties.
PR 15-28110/26/2016Moshe Maman and Lola 8 West Ltd. (T/A Filicori Zecchini) Respondent's motion at hearing to withdraw orders against Filicori Zecchini USA Corp. granted; minimum wage and penalty orders revoked as to Lola 8 West Ltd. Minimum wage order modified to reduce wages due and to revoke civil penalty as to Maman; civil penalty, liquidated damages and interest affirmed on recalculated principal amount. Count 1 of penalty order revoked as to Maman and otherwise affirmed; counts 2 and 4 affirmed; count 3 revoked. Maman testified he was not employer; respondent produced credible and unrebutted evidence to show he was as matter of economic reality in that he hired claimant to work as barista, promoted him, told him what to wear to work, supervised him, made his work schedules and determined his rate and method of payment. Lola 8 West not employer where other than one paycheck, for which credible explanation offered, there was no evidence to show it employed claimants. Minimum wage order to be modified based on best available evidence (time records printed from work site cash register), which respondent did not consider, and petitioners' credible and unrebutted testimony that claimant did not work for petitioners and, other than claim form, respondent presented no evidence to contrary. Civil penalty in minimum wage order revoked as to Maman after respondent failed to show it properly notified Maman of investigation prior to issuance of orders and Maman had no opportunity to show good faith belief he had complied with law.
PR 15-32810/26/2016Anthony Anton (T/A Tony's Pizza)Petition dismissed for failure to appear at hearing.
PR 16-07510/26/2016Alma Felicies, Graciela Velez and Chinelos II Corp.Motion to dismiss untimely petition granted. Velez not named in order, but filed petition with Felicies in which they specifically named themselves as petitioners, together with Chinelos II Corp.
CI 16-01810/26/2016 Dryden Police Benevolent Association, Inc.Corporate Instrument-Approved.
CI 16-02110/26/2016International Union Educational League, Inc. Corporate Instrument-Approved.
September 2016
Docket Number Date Issued Case Name Summary of Decision
PR 14-17009/14/2016Israel I. Berkowitz and NPI Manufacturing, Ltd. (T/A NPI Limited) Minimum wage order modified; penalty order affirmed. Petitioner NPI did not exist before 2006 and could not be responsible for wages prior to its existence; minimum wage order so modified. Modification of minimum wage order also necessary to correct mathematical errors by respondent for 5 of 312 weeks of audit period. Petitioners' excuse for failure to provide required payroll records on hurricane damage, unavailing. Petitioners supplied certain payroll records for 2009 and 2010 and then additional records covering claim period, but these did not show daily and weekly hours worked, wage rate or gross wages paid. At hearing, petitioners introduced some paystubs, but these did not show necessary arrival and departure times. Petitioners failed to provide required records; penalty order affirmed.
PR 14-28309/14/2016Clifton J. Morello (T/A Iron Horse Beverage LLC) Wage order affirmed; minimum wage order revoked; penalty order affirmed. Petitioner not denied due process when respondent did not make final determination based on additional information received before orders issued as that information merely restated facts; due process satisfied by opportunity to contest orders at hearing. For purposes of minimum wage and overtime, claimant outside salesman, not employee. Claimant was route salesman and delivery driver; solicited sales, delivered products to customers, and customarily and regularly engaged away from petitioner' place of business. Claimant not independent contractor; employment relationship existed between claimant and petitioner, who was liable for unpaid wages under Article 6. Petitioner exercised control over claimant; contacted outlets to authorize claimant to sell company products in assigned territory; petitioner and claimant communicated daily; petitioner set compensation terms and supplied all sales material and gave claimant sales leads. Claimant's sole investment in work was his time and services; had no financial stake in business and profit and loss accrued to petitioner. That invoices showed claimant's name did not confer independent contractor status; hearsay evidence regarding claimant's status unreliable and did not show claimant had own business. Salesmanship alone insufficient to show independent contractor status. Claimant did not need special skills to perform job, was required to use materials provided by petitioner and required petitioner's introduction to sell petitioner's products. That employer provided 1099, rather than W-2, did not alter economic realities or override principle that employee's duties, rather than labels, are determinative. Commissions due claimant; indisputable there was no commission-salesperson written agreement and claimant paid in cash. Civil penalty, liquidated damages and interest assessed in wage order and all affirmed; liquidated damages affirmed as petitioner failed to prove he had good faith basis to believe he did not have to pay agreed-on commissions. Penalty order affirmed as petitioner himself testified that he did not find it necessary to have written agreements setting out terms of employment or rates of pay and commission. Petitioner also provided no evidence that required payroll records maintained or required wage statements provided.
PR 14-29709/14/2016Rosario A. Masullo and R & G Masullo Inc. (T/A R and G Masullo)Wage order and minimum wage order affirmed, but modified to revoke civil penalty; penalty order revoked. Petitioners failed to meet burden of proof establishing accurate accounting of work performed by claimant and wages he was paid for that work, or showing inferences supporting respondent' calculation of wages otherwise unreasonable. Petitioners' time records, maintained by petitioner in lieu of time clock, facially inaccurate; while they showed daily hours worked by claimant on weekly basis and pay rate, they are stated in exact even numbers daily for period of years. Rounding method demonstrated that petitioners' records not reliable enough to support accurate estimate of claimant's period of employment, hours worked, precise wages paid. Paystubs offered into evidence created by one who did not appear at hearing and witness (petitioner's son) could not testify to personal knowledge of payroll process. In absence of required records, respondent reasonably relied on claim form to determine underpayment and adjusted it to reflect claimant's base rate, which changed over claim period and when claimant did not work. Calculations supported by claimant's specific, detailed and candid testimony. Penalty order and civil penalties in wage and minimum wage orders revoked after petitioners' argued, and respondent failed to contest, that respondent did not contact petitioners until after orders issued, which revealed that respondent failed to duly consider petitioners' good faith and compliance with recordkeeping obligations.
PR 14-347i, PR-15-40109/14/2016Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant Inc.)Interim. Respondent's motion for reconsideration granted; October 2015 Resolution of Decision revoked; accrual of interest suspended until final decision issued; matters consolidated. Petitioners filed petition for review, which was served on respondent; thereafter respondent timely moved for order granting permission to issue amended orders, which motion went unopposed. By interim decision, Board approved issuance of amended orders, service on petitioners required within 30 days of service of interim decision, and proof of service required to be filed with Board. Respondent served amended orders late and provided no explanation for failure to comply with Board directive; Board granted petition in October 2015. Petitioners timely appealed amended orders, which petition was assigned new docket number and served on respondent. Respondent filed answer and motion for reconsideration of October 2015 decision and consolidation of petitions; petitioners did not oppose. In interest of deciding matters on merits, respondent' motion granted.
PR 15-00709/14/2016Alberto BaudoMinimum wage order modified; respondent to recalculate wages owed, interest and liquidated damages; civil penalty in minimum wage order and penalty order revoked. Petitioner failed to meet burden of proof to establish hours worked by claimants or to show they were paid for those hours. Wages ordered recalculated for some claimants based on testimony and claim forms. Board rejected petitioner's argument that wages should be revoked as to claimant who did not testify at hearing; it is petitioner's burden to prove disputed wages paid, not the employee's. Petitioner did not receive collection letter sent to his restaurant after it had been sold or letter sent to apartment where he no longer lived. Petitioner also argued that penalties inappropriate because he operated small business, acted in good faith, paid his employees at minimum wage and afforded them meal breaks and because inability to provide written records excusable given their destruction and respondent's failure to provide opportunity to participate in investigation. Petitioner's testimony sufficiently invoked statutory factors respondent must weigh with regard to size of business, gravity of violation, petitioner' claimed good faith, history of prior violations, and other recordkeeping or non-wage violations. Investigator who testified at hearing had no involvement in investigation and provided no explanation of how penalties determined or why reasonable. Civil penalties in minimum wage and penalty orders revoked for failure to explain basis for respondent's penalty determination.
PR 15-06309/14/2016Charles Allen and Charosa Foundation CorporationOrder modified to revoke civil penalty. As undisputed that petitioner had and exercised authority to hire employees, supervised employees, controlled conditions of employment, hours, rate and method of pay and work schedule, and reported payroll information to payroll service, respondent's determination that petitioner individually liable as employer reasonable and valid. Also undisputed that claimant paid less than amount necessary to be exempt from Article 6 protection and as petitioner did not show claimant paid wages due, it was reasonable for respondent to conclude claimant not exempt employee. Petitioners' payroll journals and claimant's credible testimony unrebutted. Petitioners waived challenge to underpayment calculations. Respondent not estopped from issuing order to comply as nothing in record demonstrated respondent settled with petitioners on underpayment to claimant. Investigator testified credibly, and documentary evidence confirmed, that at compliance conference only issue with regard to claimant that was settled was her coffee club deductions; her Article 6 claim was not addressed at conference. Respondent's failure to focus at time of conference on Article 6 claim not equivalent of final administrative or judicial determination, which could have precluded re-litigation. To extent petitioners' argument was that it was unfair to hold them liable after petitioner believed matter was concluded, Board noted it would have been more unfair had claimant not collected earned wages. Furthermore, law clear that government agency not estopped from correcting errors, even if result harsh. Civil penalty revoked as invalid and unreasonable after respondent's investigator in his testimony recited statutory factors to be considered, but did not explain their application to case. Board disagreed that employer' simple objection to respondent's findings evidence of bad faith. Penalty imposed revoked as lacking reasonable and valid basis.
PR 15-13709/14/2016Jimmy Illescas A/K/A Jamie Illescas and The New Tropical Deli 2 Inc. (T/A Tropical Restaurant)Orders affirmed and petition dismissed when petitioners did not appear at hearing and did not provide evidence at hearing, thus failing to meet burden of proof.
PR 15-14709/14/2016Kassim A. Hussein A/K/A Kassim A. Kuszin Minimum wage order revoked; penalty order affirmed. Claimant not employee. Petitioner credibly testified claimant never worked in store; corroborated by regular customer who never saw claimant working in store. Respondent failed to rebut petitioner's evidence; claimant did not testify at hearing and claim form and statements he made to investigators hearsay that did not outweigh petitioner's proof to contrary. Respondent's argument that petitioner could not have operated business alone failed; Board found petitioner's testimony plausible given that he ran store as family business slow from start. Penalty order affirmed although petitioner proved claimant not employee because petitioner admitted he had permitted various individuals to work in store and did not maintain required payroll records for them.
PR 15-22009/14/2016Americo E. Pullini and Edward A. Pullini and Pullini Subsurface Contractors, Inc.Petition dismissed. Petitioners failed to appear at hearing and their counsel requested adjournment, which was granted on condition that petitioners pay fees incurred by state for court reporter and interpreter; after petitioners failed to remit payment as directed, petition dismissed.
PR 15-334, PR 15-33509/14/2016Tatiana Ballakis and Carpio Organization, Inc. (T/A Caprice Café), and Sarantis Ballakis, respectivelyWage and penalty orders revoked with respect to one petitioner. Petitioner (wife) filed petition on her own behalf and on behalf of business seeking review of two orders issued against her, the business and her husband in which she alleged, in part, that she was not an employer. Petitioner (husband) also filed petition on his own behalf seeking review same two orders, in which he alleged that he did not own business and was not claimant's employer. All petitioners contested civil penalties and liquidated damages in orders. Board consolidated cases for hearing, on consent of parties. Petitioner (wife) not individually liable as employer because she came to business sporadically, did not pay or supervise claimant, gave him no instructions and did not hire or fire him. Board determined claimant employee and husband employer after credible testimony from claimant and from prior owner of business that husband had power to hire and fire claimant, supervised and controlled his work schedule and conditions of employment, and determined rate and method of payment. Wage order affirmed as to husband and business; husband did not provide payroll records during investigation or at hearing, gave contradictory and conclusory testimony that was insufficient to meet burden of proof.
PR 15-37209/14/2016Dov Greenbaum and Mold Pro Restoration Specialist LLC (T/A Mold Pro)Minimum wage order modified to reduce principal amount owing, eliminate civil penalty and liquidated damages, and recalculate interest on modified principal amount; penalty order affirmed. Board found principal amount incorrect after petitioner denied claimant worked hours claimed, and entered into record calendar showing all jobs scheduled during relevant period. Claimant's inconsistent testimony insufficient to overcome finding that unpaid overtime amount incorrect. Petitioner unaware of respondent's investigation and could not have been uncooperative or lacking in good faith; civil penalty in minimum wage order revoked. Petitioner testified credibly that he paid overtime on daily basis, which resulted in underpayment; however, Board found petitioner had good faith belief that underpayment compliant with law and revoked liquidated damages. As not disputed that required payroll records not furnished, penalty order affirmed.
PR 16-06009/14/2016Jimmy La (T/A Nails 4 U)Motion to dismiss untimely petition granted.
PR 16-07209/14/2016Kya JacobsPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-08109/14/2016Jianyu Yao and Yao's Diner Inc.Motion to dismiss untimely petition granted.
CI 16-01509/14/2016Canastota Police Benevolent Association, Inc.Corporate Instrument-Approved.
CI 16-01609/14/2016188 Union Street Flats, LLC Corporate Instrument-Approved.
July 2016
Docket Number Date Issued Case Name Summary of Decision
PR 12-18007/13/2016Sheng Wang Zhang and Century Diner Buffet, Inc.Minimum wage order modified to eliminate wages owed two claimants and six unknown employees, to affirm wages owed others, to require liquidated damages and interest be recalculated, and to revoke civil penalty; penalty order affirmed. Board found petitioner was employer as he exercised control over kitchen and wait staff; despite having manager to oversee restaurant and supervise wait staff, petitioner had power to hire and fire staff, supervise and control work schedules, determine rate and method of pay and maintain employment records. Delegation of these duties to manager did not change status as employer; under economic reality test, power to control does not require continuous monitoring of employees. Petitioner's status as shareholder also did not exempt him from liability as employer; petitioner testified that no other shareholder participated in day-to-day operation of business and that he maintained payroll records. Based on totality of circumstances, Board found respondent's determination that petitioner individually liable as employer reasonable. Without required payroll records, petitioners had burden of showing amount of work performed and that disputed wages were paid, or of presenting evidence to negate reasonableness of inferences drawn from employee evidence, even if result were approximation. Respondent relied on one claim form and interview sheets from site visit and offered incomplete evidence of calculations and inferences. Petitioners presented credible and unrebutted evidence as to some employees. Board found respondent' order must be supported by reason and based on more than unsubstantiated interview sheets that failed to dispute testimony at hearing, and that no wages were owed two employees. Regarding four other employees, petitioner failed to meet its burden, did not present evidence at hearing to dispute work hours or pay rates; general and conclusory testimony insufficient without evidence to dispute contents of order. Minimum wage order modified to disallow award to six unknown employees; wages owed unidentified employees only when existence, work hours and wages of employees established by preponderance of evidence, which burden respondent did not meet. Petitioners' evidence regarding liquidated damages insufficient to demonstrate good faith basis to believe underpayments legally compliant. Board found respondent erred in analysis of civil penalty. Law required respondent, in assessing penalty, to take into account size of business, employer's good faith, gravity of violation, history of previous violations and failure to comply with recordkeeping and other requirements. Where employer repeat offender or violations willful or egregious, respondent may assess up to 200% civil penalty. Respondent assessed penalty for egregious violation because petitioners, as experienced employers, knew or should have known to pay minimum wage, and did not pay wages to some employees. Given its finding that reduced wages owed, Board found civil penalty unreasonable. Petitioners contend, and respondent failed to rebut, that petitioners have no prior history of violations. Board revoked entire civil penalty; penalty order affirmed for failure to pay wages weekly after petitioner and witnesses testified to bi-weekly or monthly pay, for failure to maintain payroll records after no evidence showed required records maintained, and for failure to provide wage statements because record clear they were not.
PR 14-048 07/13/2016Mike Gordon A/K/A Meir Gordon and Kenben Industries Ltd.Minimum wage order revoked; unpaid wages order and penalty order affirmed. Board found minimum wage order unreasonable because respondent's approximation of wages owed and hours worked-in absence of required employer records-lacked rational basis in record. Minimum wage order found petitioners failed to pay overtime to 209 employees in 14 occupational classifications over six years. Without required records, petitioners had burden of proving by preponderance of evidence that disputed wages were paid and/or that order invalid or unreasonable. Where no records available, respondent may make just and reasonable inferences and use other evidence to establish underpayment amount, even if results approximate, but approximation must have at least have some rational basis in record. Board concluded that petitioners negated reasonableness of inferences drawn respondent and established that rational basis in record lacking. There was no evidence that any of 195 non-complaining employees worked more than 40 hours weekly or were not paid overtime, if they did. Respondent's investigators did not interview non-complaining employees despite being provided contact information by petitioners, did not send them surveys and made no effort to conduct surveillance or field interviews. Of 14 occupational classifications in order, respondent had information on only three. Board concluded that respondent's use of averages that were flawed and based on small and unrepresentative sample of workforce to impute overtime liability for every week for every employee during six-year period unreasonable and without rational basis in record. Audit also unreasonable for not using best available evidence. Respondent did not credit records supplied by petitioners because they did not contain all information required by law. While available records were not legally required payroll records, they did contain information that could have been used to conduct reasonable audit. Claimants testified that they offered respondent's investigators additional records, which were declined as too voluminous to copy, and were never reviewed or considered despite being best evidence of what each claimant was paid. Instead, respondent relied on estimate of hours worked from claim forms, which Board could not credit because of consistent and credible testimony that employees did not work such hours every week. That respondent had, but failed to consider, evidence that might have given more accurate estimate of hours worked compelled Board to find audit unreasonable. Unpaid wages order found petitioners failed to pay earned wages and petitioners presented no evidence it paid amounts claimed; Board affirmed respondent's determination of unpaid wages. Unpaid wages order also included civil penalty and petitioners presented no evidence it was unreasonable or invalid; Board affirmed it. Penalty order assessed civil penalties for failing to keep and/or furnish true and accurate payroll records, for failing to provide employees with time off for noon day meal, and for failing to give each employee required wage statement. Petitioners did not maintain required payroll records for six years, and did not provide complete wage statements. Credible evidence also showed there were occasions when employees did not take required meal break. Board found penalty order reasonable and valid.
PR 14-23907/13/2016Dejean Gathers (T/A Camp Vision Summer Camp Inc.)Wage order affirmed. Interest, liquidated damages, penalties under wage order and penalty order not challenged. Petitioner alleged claimant was volunteer and owed no wages; Board found claimant was employee. Board credited claimant's testimony that she responded to job ad and was hired by petitioner, that he offered her wage rate and job title, and that she performed work for him. Petitioner did not rebut claimant's testimony, and there was no credible evidence that she volunteered her services. Employers must maintain for no fewer than six years accurate payroll records that include daily and weekly hours worked, wage rate, gross and net wages paid and any allowances claimed as part of minimum wage. Without such records, employer must prove disputed wages were paid. Where employer has failed to keep such records, respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence, including employee statements or other evidence, even if results may be approximate. Petitioner disputed wage calculation based on his unsubstantiated contention that claimant refused to sign proffered employment agreement, and, thus, her hours worked were less than those in respondent' calculation. This argument failed because employer-employee relationship does not turn on existence of writing, and because petitioner's shifting and inconsistent testimony was implausible and in contrast to claimant's credible and specific testimony.
PR 14-26507/13/2016Mohamedali H. Amlani A/K/A Mohamed AliMinimum wage order and penalty order revoked as to petitioner, whom Board found was not employer. Based on totality of circumstances, respondent's determination that petitioner individually liable as employer unreasonable. Board found little evidence supporting factors necessary for employer status. Petitioner testified without contradiction he was not owner of either business employing claimants, but was employee. He did not pay employees or bills for either company, did not have knowledge of when former owner sold or transferred business to another, and did not possess any business records other than those he obtained from owner. Burden shifted to respondent to establish petitioner had requisite authority over claimants' employment such that he might be deemed individual employer; evidence submitted fell short. Neither claimant, nor investigator who communicated with him during investigation testified. While investigator witnessed claimant working, claimant did not indicate who hired him or supervised his work. Although there was testimony that claimant later filled out questionnaire stating that "Ali" hired him, there was no testimony that this referred to petitioner. Statements in claim form, interview sheet and questionnaire insufficient to rebut petitioner' testimony to contrary.
PR 14-27107/13/2016John J. Kennelly (T/A Advanced Legal Processing & Associates) also (T/A Advanced Legal Processing)Wage order modified to reduce wages owed, with interest, liquidated damages and civil penalty reduced; penalty order unchallenged. Claimants were employees, not independent contractors, as matter of economic reality. Claimants' work part of integrated unit of production; petitioner argued claimants' work not instrumental to business because there were other avenues for turning profit, but this argument failed because work can be integral to business even if just component. Short duration of business relationship also not probative. Claimants did not exercise independent business skills, judgment or initiative, further confirming their economic dependence on petitioner. Claimants' sole duty was to place telephone calls in hope of locating homeowners in need of petitioner' services; to facilitate this, petitioner purchased lists of homeowners, which determined calls claimants made. Even if claimants had exercised skill or judgment in placing calls, their work was reviewed by manager whose duty it was to make final determination of whether claimants could finalize sales appointment. Petitioner alleged claimants had represented they had certain productivity and business knowledge and experience, but fact that workers skilled not itself indicative of independent-contractor status. Claimants' work was in substantial part rote, which was further evidence of economic dependence on petitioner. Nature and extent of relative investments of petitioner and claimants in business and their respective opportunity for profit or loss did not support petitioner's contention that claimants were independent contractors. Petitioner provided office space, computers, telephones, calls lists and interview sheets. Board rejected petitioner's argument that claimants economically independent because they would have been able to generate profit for themselves from commissions. Fact that claimants could control hours during which they worked also not significant in determining status. Claimants were permitted or suffered to work and were employees. Employer must provide statement of earnings paid or due to commissioned sales force, and must set out agreed terms of employment in written agreement, which petitioner did not produce; this failure gave rise to presumption that terms of employment presented by claimants were agreed terms of employment. Petitioner admitted he had not entered into written agreement with claimants setting out terms of employment, but argued he hired claimants on provisional basis; in this regard, law recognizes no probationary period. Board found calculation of claimants' hours reasonable as based on claimants' written claims and supported by their credible, specific, unrebutted testimony.
PR 14-28707/13/2016Wilson Quiceno and Sendexpress Inc. (T/A Send Express)Minimum wage order, wage order and penalty order affirmed. Petitioners failed to establish precise hours worked by claimant, that he was paid for those hours or that inferences supporting calculation of wages in minimum wage order unreasonable. Petitioner did not submit daily or weekly time records required to establish hours claimant worked, but asserted in conclusory fashion that claimant worked no more than 44 hours per week. Board has held that general, incomplete and conclusory testimony insufficient to meet employer's burden of proof. Board credited claimant's testimony concerning hours as it was detailed, specific and corroborated by his claim. Petitioners argued respondent should have deducted daily lunch hour from calculation of unpaid wages; but claimant credibly testified he did not receive meal break when in field. Board found respondent's determination reasonable due to petitioners' failure to maintain required record of daily and weekly hours worked by claimant, including lunch hour. Record showed claimant owed wages in amount greater than stated in minimum wage order, as he was paid below minimum wage for several weeks and was owed spread-of-hours payments. Respondent's calculation of wages in minimum wage order under-inclusive; this did not make approximation of wages unreasonable. Absent required payroll records, respondent entitled to rely on claim filed by claimant as best available evidence, even if imprecise. Petitioners failed to overcome respondent's calculation with credible or reliable evidence establishing precise hours claimant worked, and that he was paid for those hours, or with other evidence showing respondent's findings unreasonable. Determination of wages owed in minimum wage order affirmed after petitioner submitted, as proof of payment of wages owed, receipts for salary and commission payments to claimant prepared and signed by petitioners' accountant, but did not submit cancelled checks signed by claimant and claimant testified he did not receive paycheck for some hours he worked. Without proof claimant received wages, petitioners failed to meet burden of proof that precise wages owed were paid. Interest, liquidated damages, penalties not challenged.
PR 14-29307/13/2016Li Jing (T/A Jingli US LLC) and Jingli US LLCWage order revoked; penalty order affirmed. Petitioner testified that after meeting claimant, claimant contacted her seeking employment or learning experience in media field; petitioner advised company could not hire claimant, but she was welcome to observe as learning exercise. Petitioner did not promise claimant wages for training sessions and claimant never performed any work for company. Petitioners established that claimant did not displace any regular employees during training; that training was for claimant's benefit and company derived no immediate advantage from it; and that claimant was not entitled to wages or job with company at conclusion of training. Balance of factors weighed in favor of finding claimant not employee. Respondent failed to rebut petitioners' evidence with credible proof establishing claimant employee. Claimant did not testify at hearing; claim form and earlier letter triggering investigation were hearsay and not substantiated by investigator. Respondent's attempt to impeach petitioner's testimony with letter allegedly written on company letterhead stating claimant employee unavailing as petitioner denied she authored or signed it. Petitioner acknowledged that at least three individuals were employed during 2012, but failed to produce necessary employment records. Petitioner produced 1099 forms, which did not show weekly record of employees' wage rates, gross wages, deductions from gross wages and net wages paid. Board determined petitioner personally responsible for civil penalty after she admitted she had authority to hire employees, schedule their hours and decide their pay rate and after she submitted tax records showing she maintained employment records. Board concluded she was employer as matter of economic reality and responsible for penalty assessed in penalty order.
PR 15-00907/13/2016Zhen Hua Chen A/K/A Saichem Z. Chen and Sai Zhen Chen and Cheung Chi Lam and GTBI Corp. (T/A Good Taste Buffet)Petition dismissed for failure to appear at hearing.
PR 15-33207/13/2016Anil Amin and PAAM Group Inc. (T/A Nirvana Restaurant)Petition dismissed for failure to appear at hearing.
PR 16-00307/13/2016Qaush Beqiraj A/K/A Quash Beqiraj and Aferdite BeqirajPetition dismissed for failure to appear at hearing.
PR 16-030i07/13/2016Bryan Zaslow and JCBStyle NY LLCInterim Decision. Unopposed motion for reconsideration granted. In May 2016, Board dismissed petition after petitioners failed to comply with Board directive to file amended petition. Petitioners moved for reconsideration, stating they had not received Board's directive. As original petition seemed to have been timely filed, Board granted motion.
PR 16-03707/13/2016Petros Contracting GroupPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-037i07/13/2016Eddy E. Mendoza and Petros Contracting Group Interim Decision. Decision to dismiss petition for failure to comply with Board Rule 66.3 (d) revoked after petitioner filed amended petition.
PR 16-05607/13/2016Royal Kabab and Curry, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
CI 16-01207/13/2016Special Inspector Supervisors Employees Association Inc.Corporate Instrument-Approved.
CI 16-01307/13/2016Village of Tuxedo Park Police Benevolent Association, Inc.Corporate Instrument-Approved.
May 2016
Docket Number Date Issued Case Name Summary of Decision
PR 12-16005/25/2016Randy Zielinski and Priority One Networks LLCWage order affirmed as modified to reduce amount of commission owed after unrebutted testimony and documentary evidence from petitioner showing that commission should have been equivalent of one month of recurring monthly service charge and respondent offered no documentary evidence to rebut. Interest, liquidated damages and civil penalty to be reduced consistent with decision; supplemental wage order affirmed where petitioner's assertion that accruals did not begin until after 60 days of employment was countered by credible testimony from claimant and another witness, and petitioner produced no documentary evidence of accrual policy. Petitioner also did not meet burden of proof regarding respondent's determination that car/cell phone allowance was owed for period claimant was on maternity leave where claimant's credible testimony and notes showed that she had worked (e.g., emailing petitioner on work related matters, assisting client with installation problem) while on maternity leave. Penalty order affirmed; petition otherwise dismissed.
PR 14-02005/25/2016Shalini Mohabir Edwards and Suresh Construction Corp.Wage and minimum wage orders revoked in their entirety; penalty order affirmed; petition granted in part and denied in part. Respondent did not rebut petitioners' credible testimony and documentary evidence that no wages were owing. Petitioner credibly testified that she hired claimants' that terms of their agreement regarding work hours, daily pay rate, and method of payment were clear and agreed upon; petitioner presented four checks made out to, and endorsed by, claimants, all of which were negotiated during claim period. Respondent presented evidence showing that it relied on letter filed by organization on behalf of claimants. Letter attached claim forms signed by claimants, but forms lacked critical information that only appeared in unsworn referral letter from organization. Respondent's investigators testified that they visited petitioners' business, but were unable to find anyone, that they never spoke to claimants and that their findings were based on unsworn statements in referral letter. Board disagreed with respondent that unsworn referral letter was best available evidence on which to rely for its findings. Board found that even if petitioners' evidence were minimal and lacking in precision, it was not valid and reasonable for respondent to base its findings on other than actual investigation that revealed violation of labor law for unpaid wages.
PR 14-08005/25/2016Dimitrios Potamianos Sr. and Saveta Lakeram (T/A DS Studio LLC) Wage and penalty orders affirmed; petition denied. Petitioners did not meet their burden of proof when they failed to produce legally sufficient payroll records; their evidence, including "earnings statement," was facially inaccurate and/or too general, conclusory, incomplete and unreliable to satisfy burden. Respondent' wage calculation, in absence of acceptable evidence from petitioner, was used to determine wages owed.
PR 14-31005/25/2016Eleanor Capogrosso and Eleanor Capogrosso Attorney at Law, PLCC, and Eleanor Capogrosso, LLCPetition dismissed for failure to appear at hearing.
PR 15-033i05/25/2016Carol A. Beneke and Kenneth J. Beneke and Will Brook Farms, LLC (T/A Willowbrook Farm)Interim Decision. Unopposed motion to amend and reissue orders granted, respondent to serve amended reissued orders on petitioners within 30 days of service of interim decision, and file proof of service of amended reissued orders with Board within 15 days of service on petitioners.
PR 15-17105/25/2016Elba Arvelo A/K/A Elba Peralta (T/A Restaurant Los Taxistas) Minimum wage and penalty orders revoked and petition granted. Petitioner was employee, rather than employer as matter of economic reality. Petitioner met burden of proof when she showed, and respondent did not rebut, that she did not hire or fire employees, supervise or control employee work schedules or conditions of employment, determine employees' rates and methods of payment or maintain employment records. Owner of business was often out of country, but continued to set employee work schedules and provided instructions on operation of business. That petitioner may have had some authority to make accommodations to employee schedules when owner away was not sufficient control over schedules and conditions of employment to find her individually liable as employer. Similarly, passing instructions on to employees from owner did not indicate employer status; petitioner may have supervised claimants in owner's absence, but credible evidence showed she lacked authority to act on her own. She earned same pay as claimants or less, had no meaningful authority or operational control, had no ownership interest and did not share in profits. Her status as trusted employee communicating necessary information to co-workers in order for them to perform their respective jobs did not rise to level of supervision and control required to find her employer.
PR 15-18205/25/2016Anastasia Y. KonovaltsevaMotion to dismiss untimely petition granted.
PR 15-27305/25/2016Juan F. Mendoza and Martha J. Mendoza and La Fonda De Don Juan, Inc. (T/A Pupuseria)Motion to dismiss untimely petition granted.
PR 15-34805/25/2016Angela De La Rosa and El Conde Rest. Corp. (T/A El Conde Restaurant)Motion to dismiss untimely petition granted; Board declined to extend statute of limitations for filing of petition based on possible professional malpractice of third party.
PR 15-36705/25/2016Eric Vadillo A/K/A Erick Vadillo and Paragon Home Designs, Inc.Motion to dismiss untimely petition granted.
PR 15-37505/25/2016Gavin Ralph Farella and James Ralph A/K/A Jamie Farella and Brothers Barbecue, Inc. (T/A Brothers Barbecue)Motion to dismiss untimely petition granted.
PR 16-00905/25/2016Dana Poland (T/A Dana' Rusty Anchor)Motion to dismiss untimely petition granted.
PR 16-03005/25/2016Bryan Zaslow and JBCStyle NY LLC Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-03305/25/2016Demola Bamgbose and Tayo Bello Bamgbose Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PES 14-01305/25/2016Zoom Flume Water Park, LLCPetition granted. Notice of violation and order to comply with Industrial Code Rule 45-2.8 revoked. As apparent purpose of regulation is to protect minors from exposure to machinery, rule inapplicable to water slide at issue.
CI 16-00705/25/2016Igbodo Development Union Metropolitan Area of New Jersey and New York Chapter, Inc. Corporate Instrument-Approved
CI 16-00805/25/2016Tuckahoe Police Benevolent Association Inc. (REISSUED)Resolution of Approval reissued after applicant revised its Certificate of Incorporation.
April 2016
Docket Number Date Issued Case Name Summary of Decision
PR 11-39304/13/2016Llesh J. Beqiraj and Mento Beqiraj (T/A University Pizza & Restaurant) also (T/A University Pizza, Ltd.)Petitioners' application for reconsideration denied. Petitioners sought review of two orders and, after hearings, Board issued decision affirming orders in part, revoking them in part, and otherwise denying petition. Petitioners wrote letter seeking "review" of decision, alleging that Board had failed to properly weigh evidence at hearing; Board treated letter as application for reconsideration. Petitioners' application sought to re-litigate evidence already submitted at hearing, and did not set out new facts or circumstances arising subsequent to decision or consequences resulting from compliance with decision that would warrant reconsideration. Application for reconsideration denied.
PR 12-06204/13/2016Kyra Haring and For Pet's Sake Veterinary Center, P.C. Petition granted in part and denied in part. Minimum wage order affirmed for five employees as petitioners failed to meet burden of proof when they alleged an accounting error resulted in underpayment of four employees, and when they alleged firth employee had falsified time records, but period of alleged falsification was outside period covered by order. Minimum wage order revoked for one employee where respondent offered no evidence to rebut petitioners' evidence showing payment of required overtime. Minimum wage order modified for another employee who, as salaried administrative employee, was exempt from overtime for part of the period covered by the order when salary exceeded required weekly amount. Civil penalty revoked where respondent failed to consider statutory factors; interest to be recalculated. Supplemental wage order revoked as petitioners had written policy requiring vacation leave be used in year it accrued and credible, and uncontradicted evidence showed employee took or was paid for accrued vacation. Penalty order revoked as unreasonable when record showed petitioners' failure to produce required records was oversight related to computer system and promptly rectified.
PR 12-08104/13/2016Iqbal AhmedWage order affirmed, but modified to reduce amount of wages owed due to claimant testimony regarding weekly wage and partial payment of wages owed, with interest reduced proportionally and civil penalty revoked. Minimum wage order affirmed, but modified to reduce total due by revoking civil penalty as respondent failed to consider required factors; based on claimant's testimony regarding weekly pay rate, wage amount would have been increased, were Board not precluded from modifying wages upward. One count of penalty order revoked for same reason, and three other counts affirmed when uncontested by petitioner; penalty reduced. Petitioner found, under totality of circumstances, to be employer where credible detailed testimony showed petitioner hired claimant, directed his work, paid him, sampled and approved his menus, supervised daily operations and counted daily proceeds. Petition otherwise denied.
PR 14-04904/13/2016Fen F. Lim a/k/a Diana F. Lim and Kelantan Corp. (T/A Nyonya Malaysian Cuisine)Minimum wage order revoked as to individual petitioner, and otherwise modified; respondent directed to issue and serve minimum wage order consistent with decision. Unrebutted evidence from individual petitioner showed she did not have authority to hire or fire, supervise or control employee schedules or conditions of employment, determine rates or method of pay or maintain employment records; Board determined she was not employer and minimum wage order revoked as to her. Minimum wage order modified to reduce wages owed an employee because period of employment unclear and sworn testimony in unrelated proceeding conflicted with period he worked, and modified to reduce wages owed another employee who testified he did not work for three months during period covered by order, and modified to revoke with respect to two employees where no evidence was presented to show how they were correctly included in order. Regarding four unidentified employees to whom respondent found wages were owed, order reasonable because existence of employees and wages due them were established by preponderance of evidence, and respondent's conclusion reasonable that restaurant could not operate without server, busser, food preparer and cook during period when no known employees claimed to have worked in those positions. Liquidated damages and civil penalty affirmed, with recalculation of amounts owed required. Tip appropriations order revoked lacking evidence to show tips improperly appropriated. One count of penalty order revoked (relating to tip appropriations); remainder of order affirmed.
PR 14-05304/13/2016Fen F. Lim a/k/a Diana F. Lim and Kelantan Corp. (T/A Nyonya Malaysian Cuisine)Minimum wage order revoked as to individual petitioner, and otherwise modified; respondent directed to issue and serve minimum wage order consistent with decision. Unrebutted evidence from individual petitioner showed she did not have authority to hire or fire, supervise or control employee schedules or conditions of employment, determine rates or method of pay or maintain employment records; Board determined she was not employer and minimum wage order revoked as to her. Minimum wage order modified to reduce wages owed an employee because period of employment unclear and sworn testimony in unrelated proceeding conflicted with period he worked, and modified to reduce wages owed another employee who testified he did not work for three months during period covered by order, and modified to revoke with respect to two employees where no evidence was presented to show how they were correctly included in order. Regarding four unidentified employees to whom respondent found wages were owed, order reasonable because existence of employees and wages due them were established by preponderance of evidence, and respondent's conclusion reasonable that restaurant could not operate without server, busser, food preparer and cook during period when no known employees claimed to have worked in those positions. Liquidated damages and civil penalty affirmed, with recalculation of amounts owed required. Tip appropriations order revoked lacking evidence to show tips improperly appropriated. One count of penalty order revoked (relating to tip appropriations); remainder of order affirmed.
PR 14-15104/13/2016Gabriel Rabinovich, Oleg Yemyashev and G&L Ambulette Co., Inc.Minimum wage order, unpaid wages order, penalty order and supplemental wage order affirmed, and petition denied against recidivist employer. Board determined one claimant not administrative employee because his weekly wage did not meet required minimum, and not exempt from overtime because he did not meet conditions for overtime-exempt employee as dispatcher duties did not meet general-business-operations test and did not require that he act with independent judgment in matters of significance.
PR 15-079i04/13/2016Syndie Molina a/k/a Dr. Syndie G. E. Molina and Family Fitness Unlimited, LLCPetitioners' motion for reconsideration granted; September 16, 2015 decision revoked; petition filed March 2015 reinstated; Board will schedule new hearing. Petitioner provided sufficient information regarding out-of-county family emergency and subsequent motor vehicle accident resulting in injuries to her head and spine to warrant new hearing.
PR 15-28304/13/2016Debashis S. Das a/k/a Bob Das and Clean-o-matic, Inc.Petition dismissed for failure to appear at hearing. Petitioners' attorney appeared at hearing; petitioners did not. As petitioners' attorney called no witnesses, was unable to present evidence and petitioners failed to meet burden of proof. By letter filed with Board, but incorrectly addressed to respondent, petitioners requested reinstatement on ground petitioner unable to appear at hearing because he was only person who could open his business on that day; this not good cause for failure to appear.
PR 15-29704/13/2016Zuleyha Akcay a/k/a Julie Akcay and Banco Building LLC (T/A Arcade Department Store)Motion to dismiss untimely petition granted; law-office failure cannot excuse petitioners' failure to comply with 60-day statute of limitations.
PR 15-30804/13/2016Ahmed Mosid and Best Deli Grocery Corp.Petition dismissed for failure to appear at hearing.
PR 15-35004/13/2016Christopher James Brewer and CB Painting, Inc.Petition dismissed for failure to appear at hearing.
PR 15-36004/13/2016Peter Schmidt and Richard Schmidt a/k/a Richie Schmidt (T/A Crazy Cow Dairy)Petition dismissed for failure to appear at hearing.
PR 15-38204/13/2016Hamilton' Soda Fountain NY LLC (T/A Hamiltons Soda Fountain)Petitioner's cross-motion to strike respondent's motion to dismiss denied as respondent's answer filed according to Board directive; respondent's motion to dismiss petition granted after petition filed late and petitioner failed to show service of orders improper. Petition dismissed.
PR 15-40504/13/2016Viwat Jongvishayasawach a/k/a Viwat Sawach and Note Thai Corp.Motion to dismiss untimely petition granted.
PR 16-00104/13/2016Boguslaw Pajor a/k/a Bogdan Pajor and Amtec International of NY Corp.Motion to dismiss untimely petition granted.
PR 16-00804/13/2016Pedro A. NavedaMotion to dismiss untimely petition granted.
PR 16-02304/13/2016Jeffrey Genshaft and The Big Picture, Inc.Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
CI 16-00604/13/2016Buchanan Police Association, Inc.Corporate Instrument-Approved
CI 16-00804/13/2016Tuckahoe Police Benevolent Association Inc. Corporate Instrument-Approved
March 2016
Docket Number Date Issued Case Name Summary of Decision
PR 11-30003/02/2016Patrick Horan (T/A Horan Communications LLC)Minimum wage order directing payment of minimum wage payments owed 50 named employees revoked as unreasonable where petitioner met burden of proof after presenting credible evidence that no overtime was worked, and where respondent failed to rebut petitioner's evidence. Board accepted that petitioner's payroll records inaccurately showed overtime hours worked because he used "gross up" payment method combined with promise to pay employees net daily wage rate; he reported more hours to payroll company than employees actually worked in order to engineer correct net wage amounts. Respondent's investigator testified that employee statements were used to calculate unpaid overtime, but no statement in evidence at hearing showed overtime owed and no investigator with personal knowledge of interviews with named employees testified. Penalty order modified to revoke penalty for failure to provide required meal break as record showed that employees received at least 30-minute meal period each day.
PR 11-30103/02/2016Patrick Horan (T/A Horan Communications LLC)Minimum wage order directing payment of minimum wage payments owed 29 named employees revoked as unreasonable where petitioner met burden of proof after presenting credible evidence that no overtime was worked. Board accepted that petitioner's payroll records inaccurately showed overtime hours worked because he used "gross up" payment method combined with promise to pay employees net daily wage rate; he reported more hours to payroll company than employees actually worked in order to engineer correct net wage amounts. Respondent failed to rebut petitioner's evidence. Respondent investigator who testified had no personal knowledge of investigation, did not speak to petitioner's employees, and did not calculate overtime liability. Other evidence offered by respondent at hearing too general and equivocal to support determination that employees whose statements were not in evidence were owed overtime wages for period in question. Penalty order modified to revoke penalty for failure to provide required meal break as record shows that employees received at least 30-minute meal period each day.
PR 12-12403/02/2016Abdul Abdullah And Rayen Hussein (T/A Stock Aide Deli) Also (T/A Stock Aide Market & Deli)Minimum wage order modified to remove one employee as no evidence presented at hearing to prove he had worked more than 40 hours per week, and respondent's investigation lacked reasonable basis; principal amount due corrected, with liquidated damages and interest to be recalculated; civil penalty in minimum wage order revoked where respondent presented no evidence at hearing of having considered factors required by statute; order under Articles 5 and 19 affirmed. Petitioners not entitled to meal or lodging credit as they failed to keep required records; mere testimony about free meals or that employee living with them could eat anything he or she wanted not enough to overcome requirements of law and regulations.
PR 13-01603/02/2016Ronald M. Delevan And Susquehanna Locomotive & Railcar Repair Services IncPetition dismissed for failure to appear at hearing.
PR 13-12603/02/2016Dimitrios GatanasMinimum wage order, unpaid wages order and penalty order revoked with respect to petitioner, who proved he was not complainants' employer because he did not exercise sufficient operational control over business. Respondent' evidence at hearing that petitioner may have directed employees to undertake take-out customer-service tasks or was sometimes present at pizzeria, and that employees believed he was owner or boss, does not rise to level of operational control necessary to hold petitioner individually liable as employer.
PR 14-09903/02/2016Melissa L. Dewey A/K/A Melissa L. Fuller, Timothy M. Dewey, And Tmd Contracting LLCWages, interest and liquidated damages in wage order affirmed where, based on totality of circumstances, claimant, as matter of economic reality, was employee, not subcontractor, and dependent on petitioners to render service. Petitioners hired claimant; set her wages, hours and location of work; assigned work she was to perform; provided computer and financial materials to do so; and monitored her work, which itself was sufficiently integral to petitioners' operations as to be evidence of claimant's status as employee. Claimant employed part-time elsewhere, did not operate own business, did not advertise with business cards, and did not have own workers-compensation or disability policy. Petitioners produced no proof of claimant's status as independent contractor such as estimate for job or contract between parties. Claimant's dependence on petitioners to provide opportunities for work does not reflect skill or independent initiative of bona fide independent contractor. Civil penalty in wage order and penalty order revoked after investigator testified that penalty imposed was standard penalty, which contradicts requirement to give due consideration to factors enumerated in statute, and after respondent provided no reasonable explanation of how factors considered.
PR 14-19003/02/2016Marek Jandroska and 123 New York CorporationWages, interest and liquidated damages in wage order affirmed where general contractor could not avoid his burden to provide required payroll records because cancelled checks were in possession of subcontractor, and he could have obtained copies from subcontractor, or by subpoena. An employer is not absolved of responsibility to maintain and produce records, even where another has possession of payroll records. Civil penalty in wage order and penalty order revoked when respondent failed to adequately explain basis for administrative determination of penalty amounts sought.
PR 15-05103/02/2016Luisa MartinezOrders revoked after respondent moved at hearing to withdraw orders against petitioner, and motion granted.
PR 15-13403/02/2016Rob Josclyn and Wasoff Plumbing and Utility Co., Inc.Petition dismissed after petitioners, who also did not participate in prehearing conference, failed to appear at hearing. Petitioners requested reinstatement on ground that due to miscommunication, they had wrong date for hearing; request denied because they did not establish good cause for failing to appear.
PR 15-15603/02/2016Brandon C. Delmarle And BCD Home Improvements, LLCPetition dismissed for failure to appear at hearing.
PR 15-20903/02/2016Frank CammarataPetition dismissed for failure to appear at hearing.
PR 15-22703/02/2016Ruben Munet, Zenaida Munet, Ruben Munet, Jr. and St. James Park Daycare Center Inc.Petitioners' first petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition; thereafter, petitioners wrote Board to assert that they could not afford to pay amounts in order. Board treated letter as motion for reconsideration, and then denied it because petitioners again failed to comply with Board Rule 66.3 (d) and amend petition; October 28, 2015 decision dismissing proceeding confirmed.
PR 15-27403/02/2016Yevgeny Panchenko A/K/A Gene Panchenko Construction Nyc, Inc. (T/A Rhino Construction)Motion to dismiss untimely petition granted.
PR 15-28903/02/2016Tara Joy Oolie and Just Calm Down, LLC and Just Calm Down Ii, LLC (T/A Just Calm Down Spa)Motion to dismiss untimely petition granted.
PR 15-35703/02/2016Parviz ShakibanMotion to dismiss untimely petition granted.
PR 15-36503/02/2016Lorraine Caruso A/K/A Lori Caruso and Precision Assembly Technologies, Inc.Motion to dismiss untimely petition granted. Petitioners' argument that orders to comply improperly served unavailing. Service proper as Labor Law § 33 allows Commissioner to serve orders by mail to parties at last known place of business and affidavits of service show copy of orders was mailed to each party at last known place of business.
PR 15-38403/02/2016Edward GlobokarPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-38503/02/2016Karen GlobokarPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-39503/02/2016Abdelilah Alami Binani and Alandalous Properties Corp. (T/A Parika Islamic and Arabic School)Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition, and because Board lacks jurisdiction to review judgment entered against petitioners by respondent.
PES 15-01003/02/2016Todd SaltsmanProceeding dismissed where petitioner failed to comply with Rule 66.3 (d) and amend petition.
CI 16-00203/02/2016Center for Frontline Retail, Inc.Corporate Instrument - Approved
CI 16-00303/02/2016Macedon Police Association, Inc.Corporate Instrument - Approved
CI 16-00503/02/2016Directors Guild of America, Inc.Corporate Instrument - Approved
January 2016
Docket Number Date Issued Case Name Summary of Decision
CI 15-01701/20/2016Saint John's Chapter of The American Association of University ProfessorsCorporate Instrument - Approved
CI 16-00101/20/2016Johnstown Police Benevolent Association, Inc.Corporate Instrument - Approved
PR 13-15301/20/2016David Popermhem and G.T.S. Thai Inc. (T/A Planet Thailand) (CORRECTED and REISSUED)Minimum wage order affirmed in part, modified in part and revoked in part. Affirmed as to three claimants; modified to reduce wages due two claimants where records in evidence and investigator testimony did not adequately explain claim, and where it was necessary to modify claim period to not overlap with claim for unpaid wages; civil penalty revoked because employer records were maintained and produced, and because respondent's standard imposition of 100% civil penalty contradicts statutory requirement to give consideration to required factors and respondent provided no reasonable explanation of how they had been considered; liquidated damages affirmed and interest to be recalculated. Unpaid wages order modified to change claim periods for three claimants where, although petitioners did not meet burden of proof to show unpaid wages order invalid or unreasonable, record was clear that claims for unpaid wages were limited to specific periods; civil penalty revoked (for reason set out above) and interest affirmed. Penalty order modified to reduce penalty due; counts 1, 2 and 3 affirmed; count 4 (failure to provide 30-minute break) revoked because petitioners provided employees required break of at least 30 minutes per shift. Decision issued in this matter on January 20, 2016 revoked and replaced by corrected and reissued decision.
PR 13-18001/20/2016Sotirios Econopouly, Sr. and 84Th St. Food Corp.Respondent's motion for leave to establish good cause for its failure to timely file its answer denied, petition granted and order to comply revoked in its entirety. Respondent missed several deadlines established by Board Rules or in Board's discretion for filing requisite documents and pleadings. In this case, respondent's proffered explanation of what petitioners aptly styled "law office failure" was insufficient. Further, respondent's assumption of Board approval when Board was silent is counter to express provisions of law, as is respondent's notion that petitioner's lack of objection, or consent, to extension is equivalent of Board approval.
PR 15-21501/20/2016Moshe Jii JerusalemPetition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-29001/20/2016Mohammed Malik and 133 Plus 24 Sanford Ave. Realty Corp.Motion to dismiss untimely petition granted. Petitioners argued petition was "timely mailed under the circumstances," those circumstances being petitioners' counsel's two-day observance of religious holy days; argument was unavailing because only legal holidays, which did not include holy days observed here, permit extension of time to file petition. Petitioners also sought to apply Section 25-a of New York General Construction Law, which allows five-day extension for mailing; this argument also was wrong; section 101 (1) of New York Labor Law and Board Rules of Procedure and Practice 65.3 (a) and 65.5 (d) control.
PR 15-29801/20/2016Mohammed A. Aldhufri and Khald Grocery Deli Inc.Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-29901/20/2016Bernard Watson and Rightway Plumbing and Heating Inc.Motion to dismiss untimely petition granted.
PR 15-31501/20/2016Vladislav R. Yusufov and Signature Inc. (T/A Shazka Restaurant)Motion to dismiss untimely petition granted. Petitioners did not dispute that petition untimely, but argued-incorrectly-that petitioners' prior counsel's alleged failure to timely file petition excused late filing.
PR 15-31801/20/2016Mark BonnerPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-32001/20/2016Rodolfo Valentin Quiroga A/K/A Rodolfo Valentin and The New York Hair Salon Inc.Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-32101/20/2016Moal Grocery & Deli, Inc.Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-36101/20/2016Hector RojasPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition, and for want of jurisdiction, as Board has no jurisdiction over judgment entered against petitioner in favor of respondent.
PR 15-37801/20/2016Jim HansPetition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
December 2015
Docket Number Date Issued Case Name Summary of Decision
PR 10-18812/09/2015Krista Schultz and RkJ Interests LlcDecision, dated November 5, 2014, revoked because service of decision on petitioners was defective. Decision reissued; wage order affirmed except that accrual of interest suspended from November 5, 2014 to December 9, 2015.
PR 11-39412/09/2015Joseph Baglio and The Club At Windham, Ltd.Wage order affirmed with regard to wages owed three claimants, and revoked with regard to remaining employees listed in order, with interest and civil penalties reduced proportionally. Petitioners met burden of proof showing respondent' findings unreasonable or invalid after respondent based those findings on unsubstantiated and partial responses to questionnaires mailed to employees, and in calculating wages owed, did not verify or authenticate information, either by means of a telephonic or other form of interview or at hearing.
PR 12-02812/09/2015Hung Cheng A/K/A Holly Cheng and New Asian Supermarket, Inc.Wage order affirmed after petitioner failed to meet burden of proof in showing that as shareholder, she was not individually and personally liable as employer. Petitioner exercised control over day-to-day affairs and financial operations of enterprise and, thus, controlled conditions of employment. In spite of testimony to the contrary, no evidence produced at hearing to support claim that petitioner merely minority shareholder and contractually precluded from controlling conditions of employment.
PR 12-04012/09/2015Rafael Almonte and D'Almonte Enterprises Parking Garage Inc.Wage order affirmed against individual petitioner, found to be employer based on claimant's consistent and specific testimony and petitioner's own inconsistent, general and unreliable testimony. Wage order modified to reduce wages owed by corporation to include only period after it was registered with State; interest, liquidated damages and civil penalty reduced proportionally. Respondent directed to issue amended wage order consistent with decision.
PR 12-15212/09/2015Saturnina Serrano (T/A Teletronic Radio & T.V. Co.)Petitioner found to be claimant's employer, as matter of economic reality. Wage order modified to reduce wages due, civil penalty and interest; liquidated damages modified to reflect that petitioner had good faith belief claimant not her employee for electronics store and rental property, but same good faith belief could not be reasonably extended to claimant's domestic work in petitioner's home. Penalty order affirmed.
PR 15-04512/09/2015Lori A. Sottilotta and Royale Class, Inc. and Royale Class Consulting, Inc.Petition dismissed when petitioners failed to appear, failed to communicate correct contact information to Board, and made no application for reinstatement.
PR 15-12912/09/2015Majed Y Al Salaj and Columbia Street Limousine Services, Inc.Motion to dismiss untimely petition granted.
PR 15-14212/09/2015Abraham B. Greenfield and Ahava Medical & Rehabilitation Center, LlcMotion to dismiss untimely petition granted. Petitioners did not dispute that petition untimely, but argued that individual petitioner improperly served; argument unavailing as petitioner served at very address confirmed in petition as his business address.
PR 15-18812/09/2015Manuel A. Caisaguano A/K/A Emanuel Caisaguano and Maca Restaurant, Corp. (T/A Firenze Ristorante)Petition dismissed where petitioners failed to comply with Board Rule 65.14 and amend petition.
PR 15-20712/09/2015Earl Edwards and Robertina R. Edwards and Stepping Up Day Care Center, Inc.Motion to dismiss untimely petition granted.
PR 15-22112/09/2015Elisas Food & Plus No 1, Inc. (T/A Elisas Food & Plus)Motion to dismiss untimely petition granted.
PR 15-25312/09/2015Markku V. Wekara A/K/A Mark Wekara and Christopher Haigney and Optigolf Syracuse Llc and Optigolf America, LlcMotion to dismiss untimely petition granted.
PR 15-25912/09/2015Mwez Blas and Izak Blas and Smarty of New York Inc.Motion to dismiss untimely petition granted.
PR 15-26112/09/2015Jonathan A. Saslaw and Custclo Inc.Motion to dismiss untimely petition granted.
PR 15-26612/09/2015Frickly Mejia and Mohammed El Baroudy and F & M Used Tires IncMotion to dismiss untimely petition granted.
PR 15-27812/09/2015Linda J. Cunegin and Tri-County Home Nursing Services, Inc.Motion to dismiss untimely petition granted.
WB 15-00112/09/2015National Restaurant AssociationOrder on report and recommendation of 2015 fast food wage board confirmed; respondent followed prescribed statutory process and did not act contrary to law. 2015 fast food wage board properly constituted, wage order itself appropriate and requisite analysis of employee-focused factors for when to raise minimum wage undertaken. Findings are final, and not subject to Board review except to extent Board finds sufficient basis for findings in record. Wage order did not violate separation-of-powers doctrine because State legislature delegated to Commissioner of Labor authority to investigate adequacy or inadequacy of wages in occupations, and to appoint wage boards with express purpose of making recommendations to Commissioner. Argument that wage order unconstitutional not properly before Board because Board has no procedure available by which to make its own findings of fact on constitutional issues raised, and where minimum wage order will not be effective during pendency of Board appeal.
October 2015
Docket Number Date Issued Case Name Summary of Decision
CI 15-01410/28/2015USWU Local 74 Labor-Management Corporation. Corporate Instrtument - Approved
CI 15-01510/28/2015Johnson City Police Association Inc. Corporate Instrtument - Approved
PR 11-08510/28/2015Joyce A. Santamaria and Zenker Corp. (T/A Empire State Karate)Wage order affirmed, as modified to reduce wages owed; respondent to recalculate civil penalty and interest commensurately. Petitioners did not maintain legally required payroll records; nevertheless, petitioner's credible and consistent testimony and her reconstruction of claimant' hours, as well as claimant's own lack of credibility, were best available evidence, revealing that claimant did not work hours alleged. Petitioners met burden of proof even in absence of payroll records.
PR 14-05010/28/2015Evgeny A. Freidman A/K/A Gene Freidman A/K/A Evegeny A. Freidman and Millennium Taximeter Corp. (T/A Millennium Taxi Meter Shop)Minimum wage order affirmed where claimants were employees, not independent contractors, because their sole investment was their time and labor; their sole source of income was from work at petitioners' site; they were economically dependent on petitioners; they had no opportunity for profit and loss other than their labor; and work they performed was essential to petitioners' business. Petitioner who was sole owner, president and secretary of petitioner corporation was employer, based on totality of circumstances, where he personally made all significant decisions concerning terms and conditions of employment, including giving raises, requiring uniforms and requiring certifications. Petitioners did not meet burden to show underpayment calculations invalid or unreasonable; petitioners' version of claimants' hours and circumstances in which they worked was not creditable, while claimants' testimony was, and constituted best available evidence. Respondent was not collaterally estopped from issuing orders because doctrine applies to already litigated issue, and not to previously investigated issue. Respondent also not equitably estopped from issuing orders because respondent may change its position after petitioners detrimentally relied on an investigation report as a government agency may correct errors, even with harsh results, particularly after petitioners provided false information during prior investigation.
PR 14-11610/28/2015Franco Lamotta A/K/A Franko Lamotta and Cafe Amore of N.Y. Restaurant, Inc. (T/A Cafe Amore's Pizzeria Ristorant Motion to dismiss untimely petition granted.
PR 14-15710/28/2015Angelo Georges and GR January Corp. (T/A Michael's Restaurant)Wage order affirmed with respect to wages due, liquidated damages and interest. One petitioner was employer as matter of economic reality where claimant's unrebutted and credible testimony showed that petitioner hired him, supervised his work and paid him. Petitioners failed to maintain required wage and hour records and to meet burden of proof to show respondent's calculation of unpaid wages unreasonable; calculations were based on claimant's statement and confirmed at hearing by his credible testimony. Petitioners incorrectly alleged Article 19 statute of limitations ran from date orders issued; but Labor Law provides that statute tolled from date employee files complaint. As wages sought within statutory six- year period, orders not barred. Orders also not barred by laches; while no dispute that respondent delaying in notifying petitioners of claim, delay did not prejudice petitioners. Civil penalty in wage order revoked because respondent presented no evidence of considerations used to set it.
PR 14-28410/28/2015Douglas HannantPetition dismissed for failure to file amended petition.
PR 14-34710/28/2015Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant)Petition granted when, without cause, respondent failed to provide Board with timely proof of service of amended orders.
PR 15-00510/28/2015Vita A. Defeo and Viajo's, Inc.Proceeding dismissed. After testimony by, and on behalf of, petitioners that claimants were owed no wages for relevant period, respondent permitted to withdraw minimum wage order and petitioners withdrew petition contesting penalty order.
PR 15-15010/28/2015Menashe NewhouseMotion to dismiss untimely petition granted.
PR 15-15210/28/2015Robert J. Greenman and Bob's Collision & CustomsMotion to dismiss untimely petition granted.
PR 15-16010/28/2015Jameson Roofing Company.Motion to dismiss untimely petition granted.
PR 15-16210/28/2015Kathleen Olesko and Karen Card and One More Round, Inc.Motion to dismiss untimely petition granted.
PR 15-180i10/28/2015Gabriela BancescuInterim decision: Respondent's motion to dismiss petition as untimely denied because service of orders on petitioner defective where orders were mailed to residence.
PR 15-19410/28/2015Jabbar E. McDonald (T/A Best Kept Service)Petition dismissed for failure to file amended petition.
PR 15-21310/28/2015Michael Ricotta, Jr. A/K/A Mike Ricotta and Sam Bernstein (T/A Emmons Avenue Condominium) also (T/A Emmons Avenue Condominium/1 Rewe Street)Motion to dismiss untimely petition granted.
PR 15-22710/28/2015Ruben Munet, Zenaida Munet, Ruben Munet, Jr., and Saint James Park Daycare Center Inc.Petition dismissed for failure to file amended petition.
PR 15-26310/28/2015Eitan SrorPetition granted after petitioner alleged he was not employer of claimant during period covered by order and respondent agreed order incorrectly included petitioner.
September 2015
Docket Number Date Issued Case Name Summary of Decision
PR 11-00109/16/2015Enigma Management Corp.Wage order affirmed. Board found that petitioner failed to show it was not employer, even if it were accurate that petitioner was unaware of claimant's work, because it had benefited from that work and had power to prevent it. Penalty order revoked as respondent incorrectly sought petitioner's employment records from corporate entity with which petitioner was not affiliated.
PR 11-27609/16/2015Sodhi Longia and Guaran Ditta Corp. (T/A Happy Days Diner)Minimum wage order affirmed where petitioner records were not credible, complete or reliable, and, thus, were not sufficient to meet burden of proof that order was unreasonable or invalid; order affirmed and remanded with regard to one employee to recalculate wages owed using correct rate of pay and deleting payments for spread of hours.
PR 12-08909/16/2015Demaree J. Barnes and Ruth Walden and Saba Jambu and Neighborhood Youth & Family ServicesWage order revoked as to two petitioners where Board determined they met burden of proof in establishing they were not employers. No evidence one petitioner personally had power to hire or fire employees, supervised employee schedules or conditions of employment, determined pay rates or maintained employment records; her limited role during relevant period did not rise, under totality of circumstances, to operational control necessary to hold her individually liable as employer. Evidence provided by respondent insufficient to contradict her testimony; fact that her name appeared on certain tax filings or that she may have met with employees to explain agency closure not enough to establish she was employer. Another petitioner also not employer as his role was limited to that of volunteer board member of not-for-profit corporation; as such, he had no authority to act on own with respect to employment matters.
PR 12-14909/16/2015Hugo Fernandez and New Tacolandia, Inc.Minimum wage order revoked where claimant did not appear at hearing and Board determined that claimant's having made reference to petitioners on claim form, without more, cannot form basis for finding that petitioners are liable for claimed unpaid minimum wages under Labor Law. Petitioners met their burden of proof; penalty order, modified to remove penalty for failure to furnish wage statements and penalty for failure to provide adequate meal period, affirmed.
PR 12-20109/16/2015Ioannis Kapsalas a/k/a John Kapsalas and First Choice Deli & Grocery, Inc.Wage order affirmed. Claimant's testimony was creditable while petitioners' documentary and testimonial evidence was contradictory, inconsistent and could not be credited. Petitioners failed to meet burden to show respondent's determination that claimant not paid all wages owed unreasonable.
PR 13-03309/16/2015Kamy Netram a/k/a Kamylawatee Netram and All in One Construction LLCWage order, supplemental wage order and penalty order affirmed. Considering totality of circumstances, petitioners did not meet burden of proof in showing to be unreasonable or invalid respondent's determination that petitioner hired claimants to work as laborers, set wages and hours of work, directed and supervised them, promised to pay cash daily and ended work after refusing to pay wages they had earned, or to reimburse expenditures for material and transportation costs. Petitioners did not offer evidence sufficient to refute specific, credible evidence from respondent regarding claimants' work site, duties, hours, pay rates and hiring and supervision by petitioner.
PR 14-01409/16/2015Mark Wieboldt a/k/a Mark Wieboudt and Laundry Palace Col Corp. and Laundry Palace C.I., Inc. and Laundry Palace CLT Corp. and Laundry Palace Dale LLC Wage order affirmed where Board determined that petitioners did not meet burden of proof in putting into evidence, among other things, three receipt books created by laundromat manager showing receipts alleged to have been signed by some, but not all, laundromat employees, including claimant, and showing weekly pay received.
July 2015
Docket Number Date Issued Case Name Summary of Decision
PR 10-32907/22/2015Haull 4 PFS, Inc.Wage order affirmed where Board found claimant was employee of petitioner trucking company when he was hired as truck driver by petitioner to make deliveries for petitioner in truck leased by petitioner on routes determined by petitioner at rate established by petitioner. That petitioner might have been transitioning from one corporate entity to another did not alter Board's finding.
PR 11-00207/22/2015Michael Sanseverino and Rocco's Pizza & Pasta of Ontario, Inc. (T/A Rocco's Pizza and Pasta) Wage order modified to remove wages earned outside of period covered by wage order, and, as modified, affirmed. Board determined that petitioners' attempt to avoid paying overtime by moving employees between their two pizza restaurants was impermissible. Petitioner corporations were joint employers operating common business enterprise and failed to properly pay overtime to employees working more than 40 hours per week. Employees at both sites were doing same job for same type of business, were supervised by same person and wore same uniforms.
PR 11-25707/22/2015Boris Grayver and Bora-Bora Bukovina, Inc. (T/A Bagels For You)Wage order modified, on respondent's application at hearing, to reduce wages owed by eliminating Sunday hours; amount of wages due and owing $18,984.00, with interest, liquidated damages, and civil penalty reduced proportionately; wage order, as modified, affirmed. Petitioner found to be employer where claimant's testimony credible while petitioner's testimony concerning his status and authority in business was unbelievable, vague, evasive and inconsistent with admissions made during investigation and at hearing, and witness testimony was inconsistent with petitioner's admissions. For the same reasons, petitioner's assertion that claimant was not owed wages was not proven.
PR 11-39307/22/2015LLesh J. Beqiraj and Mentor Beqiraj (T/A University Pizza & Restaurant, also T/A University Pizza, Ltd.) Wage order modified as against Llesh J. Beqiraj to reduce wages owing, with interest, liquidated damages and civil penalty reduced proportionately, and, as modified, affirmed; wage order revoked by respondent as against Mentor Beqiraj because he was not owner during claim period. Petitioner Llesh Beqiraj offered unsupported, vague, broad, inconsistent and incomplete evidence and, thus, failed to meet burden of proof to establish an accurate estimate of amount of work claimant performed and precise wages he was paid. He also failed to show that inferences supporting calculation of wages made by Commissioner were unreasonable.
PR 13-05807/22/2015Marie Carolyn E. Anyanechi and Young Achievers Day Care Center, Inc.Wage order affirmed; Respondent's motion to dismiss, made at conclusion of petitioners' case, granted. Respondent moved to dismiss petition on grounds that petitioners failed to meet burden of proof that orders are invalid or unreasonable; Board granted motion because petitioners' arguments that orders were unreasonable or invalid were unsubstantiated and petitioners failed to produce credible evidence in their direct case as their testimony and documentary evidence were vague, irrelevant, incomplete and/or not creditable.
PR 14-10407/22/2015Stephen S. Mills and the New York Hospital Medical Center of QueensSupplemental wage order modified to clarify name of corporate petitioner and to revoke civil penalty and liquidated damages and, as modified, affirmed; penalty order revoked. Board found that supplemental wages in form of frontloaded vacation accruals were owed upon separation because employee manual did not specifically set out that accrued vacation leave would be forfeited upon termination. Thus, employee leaving petitioner's employ was entitled to all frontloaded vacation accruals credited in January for use during coming year. Petitioner's argument that there was "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 14-12807/22/2015William FarinonMotion to dismiss petition granted. Board lacks jurisdiction to review decision by Commissioner of Labor to not pursue claim; such decision is not rule, regulation or order, per Labor Law § 101. "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 14-19207/22/2015Steve Donigan and the Steve Donigan Agency, Inc.Motion to dismiss petition granted. Board lacks jurisdiction to review decision by Commissioner of Labor to not pursue claim; such decision is not rule, regulation or order, per Labor Law § 101. "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 14-31907/22/2015Moshe ZupnickRespondent permitted to withdraw orders after petitioner's documentary and testimonial evidence that he was not owner of business and did not employ claimants during relevant period. Lacking order to review, Board dismissed proceeding.
June 2015
Docket Number Date Issued Case Name Summary of Decision
PR 11-10406/10/2015Robert H. WeissPetition granted in part and denied in part. Based on record, Board modified wage and vacation pay orders to reduce amounts due and give petitioner credit for amount paid in a small claims court action settlement. Board found that there was no deferred compensation due since any promised payment was contingent on profitability.
PR 11-26006/10/2015Richard M. Aufrichtig and Aufrichtig Brothers Inc. (T/A Big Apple Produce Market)Petition granted in part and denied in part. At hearing, wage order amended to reflect wages owed only for six-year period from date respondent notified petitioners of claims against them and respondent revoked penalty order. Board found that laches did not bar issuance of orders because employers are required by law to maintain for six years payroll records indicating time worked by, and wages paid to, employees. Although prosecution of matter delayed because respondent did not notify petitioners they were under investigation until March 2011 for claims filed in November and December 2006, Board concluded that there is no exception that allows employer to dispose of records in fewer than six years because it has gone out of business or for any other reason, and concluded that where wage order, as amended, seeks to recover unpaid wages only for six years from date petitioners notified of investigation, there was no prejudice to petitioners when weighed against strong public policy of enforcing wage and hour laws.
PR 13-06406/10/2015Yolonda D. Braham a/k/a Yolonda D. WhitePetition granted and supplemental wage order for unpaid vacation time revoked with respect to petitioner. Petition did not dispute that claimants were owed vacation pay or amounts claimed in supplemental wage order, but stated that petitioner was never claimants' employer. Applying "economic reality test," Board found that petitioner met burden of proof in showing that it was not valid and reasonable to hold her personally liable as a statutory employer in that there was no reliable or decisive evidence showing she a) had power to hire and fire employees, b) controlled claimant work and vacation schedules or had authority to act on her own in this regard, c) had anything to do with illegal failure to pay earned vacations or with financial problems that caused failure, d) was involved in setting wage rates, methods of payment, vacation policy or other parameters for employment or had authority to do so, or e) maintained employment and personnel records and employee time cards.
PR 13-16306/10/2015Gregorio Estevez (T/A Gregory's Home Improvement) Wage order affirmed where day laborer was an employee and not an independent contractor. Claimant was hired and supervised by petitioner, who decided how work was to be performed and obtained licenses and permits; work was same work ordinarily performed by petitioners; there was no written contractor's agreement. Claimant had no opportunity for profit and loss, the job did not require special skills or initiative and there was no evidence that claimant had his own business.
PR 14-00406/10/2015Muhammad W. Qureshi and Sunshine Grill & Restaurant, Inc.Petition granted in part and denied in part. At hearing, petitioners admitted they did not maintain required wage and hour records; nevertheless, Board found respondent' approximation of hours worked and wages owed not supported by record. One claimant found to be owed no wages as regular rate of pay more than required minimum wage for time she worked. Second claimant acknowledged he had received $2,000.00 payment from petitioners to settle matter; Board offset settlement amount against wages owed of $432.80 and found none owed. Liquidated damages affirmed as third-party settlement did not bar respondent from collecting liquidated damages.
PR 14-08806/10/2015Julianne W. BeckermanPetition granted in part and denied in part. Minimum wage order revoked after Board found that although petitioner failed to provide adequate payroll records, she met her burden of proof to show minimum wage order invalid or unreasonable through credible and consistent witness testimony at hearing. Claimant's account of hours and duties was contradicted by her own testimony at hearing and not credible; no other evidence corroborated her claims. Supplemental wage order modified to limit vacation pay to one week and respondent directed to recalculate interest, civil penalty and liquidated damages after Board found that when employer has paid vacation leave policy, such benefit must be paid in accordance with established terms, and absent specific policy providing for forfeiture of accrued vacation pay, it must be paid notwithstanding termination of employment.
PR 14-12006/10/2015James T. Metz III, Alicia Harding Metz, Lauren H. Simons, and GRJH, Inc. (T/A Cobble Pond Farms)Petitioners did not challenge wage or penalty order in petition; issues related to those orders waived and those orders affirmed. Supplemental wage order for two weeks of vacation pay revoked as invalid and unreasonable because petitioners met their burden of proof by showing claimant had received, and acknowledged receipt of, employee manual that set out that earned vacation time would be forfeited upon termination.
April 2015
Docket Number Date Issued Case Name Summary of Decision
PR 11-09204/29/2015James A. Kane and A & A Private Investigations & Security, Ltd. (T/A A & A Investigation & Security)Wage order affirmed for failure of petitioners to meet their burden of proof where they failed to pay overtime wages to security guard employee for hours he worked over 40 per week. Petitioners also failed to maintain time records of actual hours worked and adequate payroll records demonstrating claimant's rate of pay. Only evidence offered at hearing was general and imprecise testimony that claimant never worked overtime and was not paid for portion of claim period at rate stated in his claim.
PR 11-30804/29/2015Yook Wah Chu and Lucky Horse (NY) Corp. (T/A Fulton Chef)Minimum wage order affirmed as amended by respondent during hearing to remove one claimant where petitioner restaurant operators did not meet burden of proof; minimum wage owed reduced, and liquidated damages, interest, and civil penalty also modified.
PR 11-33404/29/2015Yat Sam Chang A/K/A Kelley Y Chang and Kam Fook Cheong and Jia & Jae, Inc. (T/A Hunan Village)Wage order affirmed; tip appropriations order modified to reduce both appropriated tips due and civil penalty, and to recalculate interest on new principal. Tip appropriations order modified, based on record, where one claimant testified that she could recall only one instance of petitioners taking her tips, making respondent' tip order unreasonable with regard to her.
PR 12-09204/29/2015Robinson LeonMinimum wage order and penalty order revoked where there was no valid and reasonable basis to find that newspaper hawkers were employees, rather than independent contractors.
PR 12-15704/29/2015Joseph Ventura and William Tell Services, LLC (T/A William Tell financial Services)Petition dismissed where financial broker co-employers' argument that claimant received non-employee compensation was unavailing; wage and penalty orders upheld where petitioners were found to have employed claimant and failed to pay her overtime compensation.
PR 14-06204/29/2015Ammar A. Zabarah (T/A Guy R. Deli)March 11, 2015 decision clarified and reissued, to clarify that the only modification to the minimum wage order was that the applicable wage orders are Minimum Wage Order for the Restaurant Industry (12 NYCRR Part 137) and Wage Order for the Hospitality Industry (12 NYCRR Part 146), rather than Wage Order for Miscellaneous Industries (12 NYCRR Part 142) ); as so modified, affirmed and penalty order affirmed.
PR 14-08204/29/2015Richard Russell and Richland Equity Resources Corp.Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-20104/29/2015John Voyiatzis and Johnny G' Restaurant, Inc.Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-253i04/29/2015Patrick Holiday and Debra Holiday (T/A Country Coach Catering)Interim Decision: After April 7, 2015 letter from petitioner notifying Board that petitioners never received Board's letter directing them to file amended petition, March 11, 2015 decision dismissing petition revoked, and petitioners directed to timely file amended petition.
PR 14-28004/29/2015Helmer Toro and The First Toro Family Limited Partnership (T/A H&H Bagels)Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-30704/29/2015Marilyn ShehebarMotion to dismiss untimely petition granted.
PR 14-329i04/29/2015Patricia Towle and Tatra Farm LLC and Tatra Farm Operating Corp.Interim Decision: Respondent's motion to dismiss petition as untimely denied where service of respondent's orders defective because each individual or entity named therein was not served with a copy of orders.
PR 14-34304/29/2015Alan WalkowWithdrawal of orders with respect to petitioner approved; proceeding dismissed.
PR 14-347i04/29/2015Rosa A. Mejia and La Nueva Cocina Restaurant, Inc.)Interim decision: Amendment and reissuance of orders requested by respondent approved; any interest suspended that has accrued between February 23, 2015, and date amended orders served.
PR 15-01304/29/2015Silvia Brodrick (T/A Jordanville Farm)Untimely petition dismissed per Board Rule 66.3 (d).
PR 15-05504/29/2015Karen ZapataUntimely petition dismissed per Board Rule 66.3 (d).
PR 15-06504/29/2015CJF Construction, Inc.Untimely petition dismissed per Board Rule 66.3 (d).
CI 11-00304/29/2015The Pedicab Union Association Inc.Corporate Instrument - discontinued without prejudice.
CI 15-00604/29/2015Certificate of Amendment of the Certificate of Incorporation of New York State Correctional Officers and Police Benevolent Association, Inc.Corporate Instrument - Approved.
CI 15-00704/29/2015Town of Tuxedo Police Benevolent Association, Inc.Corporate Instrument - Approved.
CI 15-00804/29/2015United Transit Leadership Organization Inc.Corporate Instrument - Approved.
CI 15-00904/29/2015Council of Urban Real EstateCorporate Instrument - Approved.
March 2015
Docket Number Date Issued Case Name Summary of Decision
PR1129803/11/2015Luchia McSweeney Orders affirmed and petition dismissed where petitioner failed to meet her burden of proof to show she was not claimants' employer; as day laborers, claimants were employees, not independent contractors because petitioner hired and fired them, set their wages and hours of work, and directed and supervised work they did. Further, claimants did not have business of their own or workers compensation insurance, and while one claimant had his own tools, petitioner supplied materials; claimants had no investment in business and no opportunity for profit or loss from their work, other than their own labor. Claimants' day-to-day work reflects nature of short-term labor in home repair/construction industry and not their success in marketing their skills independently.
PR1205903/11/2015Barbara Waltuch (T/A Barbara Waltuch, Esq.) Petitioner's counsel requested postponement of hearing due to court engagement on same date, but failed to substantiate said engagement when requested to do so. His second request to postpone hearing, for medical reasons, was received after hearing had taken place; neither petitioner, nor her counsel attended hearing although adjournment had not been confirmed. Petitioner was given opportunity to substantiate medical condition requiring second postponement of hearing, and to establish good cause for reinstatement. She failed to do either and petition was dismissed.
PR1217303/11/2015Bruce D. Zipes, Joel P. Goldberg and Brumeljo Inc. (T/A Bruce's Bakery)2010 stipulation of settlement required entry of judgment, but when petitioners defaulted after making partial payment, respondent issued orders. Stipulation of settlement was drafted by respondent, which had waived authority to issue order under Labor Law § 218 in favor of settling claims without need for further administrative action, making orders invalid and unreasonable. Orders revoked.
PR1307903/11/2015Linas Smoriginas and Linas Construction, Inc.Petition granted in part and denied in part. Orders against Linas Construction, Inc. revoked after respondent stipulated that it had been named improperly in orders. Orders against Linas Smoriginas affirmed. Claimant carpenter was employee, and not independent contractor of construction firm where claimant, although skilled carpenter, was not in business for himself and did not have workers compensation insurance, and where petitioner hired claimant, set his work schedule and hourly rate of pay, supervised his work, approved additional work requested by client, required him to keep track of hours of extra work, and reviewed his work with client prior to being paid.
PR1315803/11/2015Christopher MurphyPetitioner sought review of respondent's decision not to pursue wage claim petitioner had filed. Respondent moved to dismiss petition for lack of jurisdiction. Under Labor Law § 101, Board only has jurisdiction to review respondent' rules, regulations or orders and lacks authority to review decision. Petition dismissed.
PR1406203/11/2015Ammar A. Zabarah (T/A Guy R Deli)Deli owner, who did not maintain payroll records, received notice in 2013 of a claim filed in 2005. The duty to maintain records for six years relates back from the date when the petitioner is notified of the claim. Petitioner had burden of proof pursuant to § 196-a only for the six-year period 2007-2013. Contrary to parties' agreement that Minimum Wage Order for Miscellaneous Industries applied, Minimum Wage Order for Hospitality Industry (12 NYCRR Part 146) applied; there was no need to recalculate wages because the minimum wage requirements for this petitioner were the same under both. Civil penalty in wage order revoked as arbitrary because respondent failed to adequately explain basis for penalty.
PR1420703/11/2015Roy A. Dean and The Office, Inc.Petition dismissed as untimely; petitioner argued that petition was timely, pursuant to CPLR 2103 (b) (2)'s 'mailbox rule,' which adds five days for service by mail. This argument inapplicable as Board is quasi-judicial administrative agency within Executive Branch, governed by its own rules of procedure; CPLR is not binding. Ref: Petition of Patrik Harmanicin Construction, PR 09-256 (June 23, 2010).
PES 1200103/11/2015New York City Housing Authority Respondent's motion to strike substantive allegations in petition granted, leaving no grounds for finding orders invalid or unreasonable; identical claims raised by petitioner in earlier proceedings have been rejected (Matter of the Petitions of City of New York Department of Administration Services et al., Docket Nos. PES 10-003, 10-004, 10-005, 10-016 and 11-007 [June 7, 2011], affirmed sub nom Matter of The City of New York v Commissioner of Labor, 44 Misc 3d 612 [Sup Ct, New York County 2014]), requiring that motion to strike be granted and petition dismissed.
CI1500103/11/2015Harlem Taxi Workers Association, Inc.Corporate Instrument - Approved.
CI1500203/11/2015Safety Professional Association Inc.Corporate Instrument - Approved.
CI1500303/11/2015Physical Therapy Collective Negotiations Committee Inc.Corporate Instrument - Approved.
CI1500403/11/2015Brighton Police Patrolman' Association, Inc.Corporate Instrument - Approved.
CI1500503/11/2015Fairport Police Benevolent Association, Inc.Corporate Instrument - Approved.
January 2015
Docket Number Date Issued Case Name Summary of Decision
PR1204501/28/2015Mohammed Khalid A/K/A Khalid Butt (T/A Little Pakistan Deli)Order finding wages due deli-employee claimants affirmed where Petitioner did not have contemporaneous records of hours worked or wages paid. Reasonable and valid for Commissioner to use consistent employee statements (including employees' written claims and interview reports) as best available evidence to calculate wages due.
PR1319401/28/2015Jason Moodie, David Sandberg, and Aqua Marlborough, LLC (T/A Hudson Valley Car Wash)First petition deemed abandoned and dismissed August 2014. (Petitioners failed to timely provide Board with updated contact information; notice of pre-hearing conference and rescheduled pre-hearing conference returned by US Postal Service. Board Rule 65.4 requires prompt communication of any change in contact information; failure to do so deemed waiver of right to notice and service.) Petitioners filed second petition, asserting same claims as in first petition, but did not address its dismissal. Proper procedure to address failure to appear at hearing is request for reinstatement within five days of scheduled hearing, in the absence of extraordinary circumstances, or upon showing of good cause. Petitioners did not make timely request for reinstatement, failed to show good cause for failure to appear at first hearing and for untimely filing of second petition (nearly one year after date of orders appealed). Second petition dismissed as untimely; no basis for reinstatement of first petition.
PR1404201/28/2015Richard Harary and Rajo, Inc. (T/A Richard' Interior Design)Petition dismissed where petitioners failed to appear for hearing after request for adjournment denied because request, sent on eve of hearing, was supported by overly general and speculative doctor's note, and where petitioners failed to submit timely application for reinstatement.
PR1421401/28/2015Dimitri A. Grivas and Arma International, Inc.Petition filed with Board more than 60 days after date orders issued; respondent moved to dismiss petition as untimely. Petitioners opposed motion, arguing petition was timely due to fact that petitioners had been in settlement discussions and, petitioners claimed, had been told that filing of petition might limit respondent's ability to settle; this is legally insufficient reason. Respondent's motion to dismiss untimely petition granted; petition dismissed.
December 2014
Docket Number Date Issued Case Name Summary of Decision
PR 1036112/17/2014Russ D. Gerson and The Gerson Group LLCDecision issued 11/5/14 modified to correct math error, and reissued.
PR 1104912/17/2014Edward LillieOrder finding wages due to a dairy farm employee was revoked because it was incorrectly issued under Article 19 of the Labor Law. The Order should have been issued under Article 19-A, which applies to farm workers.
PR 1108612/17/2014Ashraf Elgharib abd CD Broadway Food Corp. (T/A Associated Supermarket).Order finding wages due to supermarket employees affirmed where employer did not have records of the hours worked or wages paid. Commissioner used the employee statements to calculated wages due, which was the best available evidence. However, the order was revoked with respect to unknown workers, because the Commissioner did not prove the number of unknown workers or their hours worked by a preponderance of the evidence. Order finding petitioners violated Labor Law § 193 was affirmed where evidence demonstrated that petitioners unlawfully required employees to purchase carts to be used to make deliveries.
PR 1115612/17/2014Jeffrey C. Gannon and Gala Construction of Dutchess County, Inc.Order finding wages due affirmed where in the absence of payroll records, Commissioner used the best available evidence to determine the amount of unpaid wages; however, petitioners were credited with wages they proved had already been paid so the amount of wages due was reduced. The civil penalty was revoked where the petitioners demonstrated good faith and that they had cooperated in the investigation, but liquidated damages were affirmed because the petitioners did not prove that they had a good faith belief that the wage underpayments were in compliance with the law.
PR 1124212/17/2014Mitchell B. Nesenoff and CES Industries, Inc.Order finding wages owed was affirmed where the petitioners' "lazy" recordkeeping made it impossible to determine what time periods alleged wage payments covered. Order finding supplements (vacation pay) due was also affirmed, where claimants' testimony concerning the petitioners' vacation policy was unrebutted. Civil penalties portion of the orders was, however, revoked where the Commissioner provided no statutory basis for the imposition of a 200% civil penalty.
PR 13-05512/17/2014Rafael MartinezWage orders affirmed where Board finds that claimant was hired and permitted and suffered to work as a laborer on construction jobs performed by petitioner over a six year period. An employment relationship thereby existed between petitioner and the claimant and petitioner is liable for wages owed under the Labor Law.
CI 1401612/17/2014Plumbers For A Stronger Union NYC Inc.Corporate Instrument - Approved.
November 2014
Docket Number Date Issued Case Name Summary of Decision
PR 10-188 11/05/2014Krista Schultz and RKJ Interests LLCWage order affirmed where claimant was hired as an art director to complete art projects on advertising accounts that petitioner took over from advertising agency that was claimant's former employer. Board finds that as a matter of economic reality claimant was dependent on petitioners' business to render service and she was therefore an employee owed wages under the Labor Law, not an independent contractor.
PR 1036111/05/2014Russ D. Gerson and The Gerson Group LLCDiscretionary income in the form of bonuses or incentive compensation was not wages under Labor Law \§ 190 because the bonuses were contingent and not solely based on the employees' personal performance.
PR 12-03111/05/2014Aldo R. Mosquera and H.A.B. Inc. (T/A Home Boys Auto Boutique)Order against tire dealer affirmed as modified where Petitioner failed to meet burden of proving he was not personally liable. Order modified as to one of the two claimants where the record did not support minimum wage underpayment.
CI 1401411/05/2014Union & Dixie, Inc.Corporate Instrument - Approved.
CI 1401511/05/2014International Labor and Working Class History, Inc.Corporate Instrument - Approved.
September 2014
Docket Number Date Issued Case Name Summary of Decision
PR1033109/24/2014Howard GoldbergOrder finding commissions due to claimants affirmed where petitioner did not produce records, which were kept out of state, to prove commissions had been paid.
PR1118609/24/2014Petula Gianopoulos Sikiotis a/k/a Yiota SikiotisOrders against individual petitioner affirmed where credible testimony demonstrated that she hired, fired, trained, supervised and controlled conditions of employment, and maintained employee records.
PR1407209/24/2014Sin-Tung Chan and Wan Xing Long, Inc.Interim decision: Petition filed after 60 day statute of limitation deemed timely where service was defective in that service of orders at closed business was not reasonably calculated to give notice.
CI1400709/24/2014New York City Coalition of Operating Engineers, Inc.Corporate Instrument - Approved.
CI1401109/24/2014Igbo World Union USA, Inc.Corporate Instrument - Approved.
CI1401209/24/2014Student Union, Inc.Corporate Instrument - Approved.
CI1401309/24/2014The Union Works, LLC.Corporate Instrument - Disapproved.
August 2014
Docket Number Date Issued Case Name Summary of Decision
PR1028508/01/2014Guolin Shi and The Society of Shaolin Temple, Inc.Order affirmed in part and modified in part, where Commissioner's determination that kung fu instructors were employees of the petitioners was unreasonable with respect to those instructors who were exempt because they were members of a religious order. Ref: Labor Law § 651 (5) (g).
PR1033908/01/2014Firequench, Inc.Claimants employed as fire safety technicians by fire safety company found to be employees, and not independent contractors, where petitioner exercised pervasive control over their duties; claimants worked on an hourly basis and had no opportunity for profit or loss from the business; the duration of their employment was intended to be continuous and long term; and their work of maintaining fire alarm systems was integral to the employer' business.
PR1037508/01/2014Joseph P. BarchittaWage order affirmed for failure of petitioner to meet his burden of proof in two cases where petitioner, a building contractor, employed carpenters on construction sites and failed to pay wages owed.
PR1124108/01/2014Joseph P. BarchittaWage order affirmed for failure of petitioner to meet his burden of proof in two cases where petitioner, a building contractor, employed carpenters on construction sites and failed to pay wages owed.
PR1104008/01/2014Michael CarusoCar dealer was personally liable for sales commissions and fringe benefits. In absence of written commission agreement, petitioner did not rebut the presumption that the terms presented by the claimant were the agreed upon terms. Claimants did not waive the protections of the labor laws when they continued to work knowing of the petitioner' precarious financial condition.
PR1118408/01/2014Gary Hsin Liang (T/A Happy Lemon Inc.)Order affirmed where petitioner failed to meet his burden of proof to show he was not claimant' employer.
PR1133808/01/2014Richard Tagliarino, Nancy Hayden, and Talent Tour USA, Ltd. (T/A Dance XPlosion)Wage order revoked where dance competition and individual petitioners met burden of proof with credible evidence that there was no agreement to pay claimant a fixed weekly salary.
PR1201608/01/2014Muna GowandanPetitioner, the widow of a UN employee who originally brought claimant, a domestic worker to the US to work in their home on a G-5 visa, was also the claimant's employer. Petitioner's testimony that claimant was a tenant who lived rent free was not credible and rebutted by credible testimony that she worked 42 hours per week and was never paid for her work. Claimant and corroborating witnesses proved that petitioner supervised and controlled claimant's work and conditions of employment, and claimant's duties included working for petitioner's babysitting business.
PR1203408/01/2014Hudson Valley Mall DentalPetitioner challenged the Department of Labor's determination that petitioner' dental assistants should be classified as manual workers under the Labor Law. The Board found that dental assistants do not fall within traditional conceptions of manual workers under the Labor Law and that the Order was unreasonable and must be reversed.
PR1408508/01/2014Kenny Deng Feng ChanInterim decision: Petition filed after 60 day statute of limitation deemed timely where service was defective in that orders were served at closed business was not reasonably calculated to give notice.
July 2014
Docket Number Date Issued Case Name Summary of Decision
PR1105107/01/2014Julio Cesar Mejia II (T/A Willy's Service Center)Petition dismissed where mail from Board to petitioner was returned by post office and petitioner failed to notify the Board of new address. Ref: Board Rule 65.4 (12 NYCRR 65.4)
PR1318807/01/2014Juan Reyes and Lightwave EngeryOrders modified to remove petitioners.
PR1319807/01/2014Jeanette De Delyra a/k/a Jean De Lyra Ehrlich and Dan Ehrlich and Alice' of Oyster Bay, Inc.Untimely petition dismissed.
CI1400507/01/2014Domestic Worker Legacy Fund, Inc.Corporate Instrument - Approved.
CI1400807/01/2014Transit Employees Association Inc.Corporate Instrument - Approved.
CI1401007/01/2014Frente Hispano-Local 79 Inc.Corporate Instrument - Approved.
May 2014
Docket Number Date Issued Case Name Summary of Decision
PR1101705/22/2014Young Hee Oh a/k/a Young H. Oh, and Cheong Hae Corp. (T/A Cheong Hae Restaurant)Wage order affirmed against restaurant and individual who admitted employing 36 employees where no payroll documents were provided and petitioners' testimony was too inconsistent and conclusory to meet the burden of proof. Admitted employees listed on the order by first name only were not "unidentified" or "unknown." Wage order revoked as to 74 individuals where petitioners set forth a prima facie case that they were not employed and DOL failed to rebut petitioners' testimony. 200% penalty modified to 100% where respondent failed to prove a repeat violation or that petitioners' actions were willful or egregious.
PR1104505/22/2014Evangelis Gritsipis and Apostolos Gritsipis and Paul's Pizza, Inc.Orders affirmed. Petitioners, in the absence of wage and hour records, failed to meet their burden of proof to show that the wages found due by the Commissioner of Labor were invalid or unreasonable.
PR1120205/22/2014Jacob Lebowitz and Cohen and Cohen, Inc.Application by Commissioner to grant the petition with respect to interest and civil penalties approved.
PR1137505/22/2014Michael J. Waldron and Titan Mechanical Contracting, Inc.Orders affirmed where petitioners failed to meet their burden of proof that the orders were invalid or unreasonable.
PR1205905/22/2014Barbara Waltuch (T/A Barbara Waltuch, Esq.)Petition dismissed where petitioner failed to appear at hearing, and application for reinstatement denied because good cause to excuse default was not established.
PR1312805/22/2014Michael CarusoCommissioner' application to withdraw orders granted without prejudice.
PR1316305/22/2014Gregorio Estevez (T/A Gregory's Home Improvement)Wage order affirmed where day laborer was an employee and not an independent contractor. Claimant was hired and supervised by petitioner, who decided how work was to be performed and obtained licenses and permits; work was same work ordinarily performed by petitioners; there was no written contractor's agreement. Claimant had no opportunity for profit and loss, the job did not require special skills or initiative and there was no evidence that claimant had his own business.
CI1400705/22/2014New York City Coalition of Operating EngineersCertificate of Incorporation - Approved.
April 2014
Docket Number Date Issued Case Name Summary of Decision
CI1400604/10/2014Economic Development Council Inc.Certificate of Incorporation - Approved.
CI1400504/10/2014Domestic Workers Legacy Fund, Inc.Application for Authority - Approved.
CI1400404/10/2014New York State Supreme Court Officers Association, Inc.Certificate of Incorporation - Approved.
CI1301104/10/2014International Association of Fire L3316 Town of Manlius, Inc.Certificate of Incorporation - Approved.
PES1001104/10/2014Mt. Vernon City School DistrictPetition dismissed for failure to file an amended petition.
PR1320204/10/2014John J. Gioino and Superior Landscaping of L.I. Inc. (T/A Superior Landscaping Design)Petition dismissed where petitioners failed to amend the petition and comply with Board rules.
PR1314504/10/2014Dolshe Gulsen and Style Icon LLCMotion to dismiss untimely petition granted.
PR1120304/10/2014Jong Hak Choi (T/A Rosemary Farm)Motion for reconsideration granted and decision of February 27, 2014 corrected and reissued because of mathematical error in calculations.
PR1115104/10/2014Stephen B. Sacher, Travco Inc., and Sacher & Co., CPA, P.C.Order affirmed against individual, accounting company and business brokerage where individual hired, fired, supervised and controlled work of claimant, set pay rates and approved claimant's work hours and claimant worked for both companies under individual employer' direction and control.
PR1029304/10/2014Kong Ming Lee, Fee Yin Lee and Blue Butterfly Fashion, Inc.Individual petitioner held to be an "employer" under the "economic reality" test to determine employer status under the Labor Law, as petitioner was found to have authority to supervise and control employees' schedules and conditions of employment; was a manager in charge of payroll with authority to control the means and method of payment; and had requisite authority to maintain employment records. Commissioner' determination that employees of apparel manufacturer worked overtime hours affirmed, but calculation of wages owed modified as to the number of overtime hours worked, number of employees, and period of underpayment.
February 2014
Docket Number Date Issued Case Name Summary of Decision
PR0914802/27/2014Nicola Marzovilla and Valdome, Inc. (T/A iTrulli)January 2014 decision modified to correct dates during which accrual of interest was suspended.
PR1030102/27/2014Joseph L. Maddi, MD and Joseph L. Maddi, Physician, P.C.Motion to dismiss petition granted where petitioner's sole argument was that the Board proceeding was subject to an automatic stay in Bankruptcy.
PR1109402/27/2014Rahman ArshadOrder revoked against individual where he testified that his involvement with the restaurant did not begin until after the claim period.
PR1117402/27/2014Ji Sung Yoo and Kum Kang Inc. (T/A KumGangSan)Petitioners failed to meet their burden of proving that DOL audit was unreasonable or invalid based on insufficient credit given for meals or meal periods.
PR1118002/27/2014Leo TsimmerPetition granted where individual proved that he was not an employer within the meaning of the law.
PR1120302/27/2014Jong Hak Choi (T/A Rosemary Farm)Orders affirmed and modified where petitioner fruit stand had some payroll records but insufficient time records.
PR1204202/27/2014Pia L. Lieb (T/A Pia L. Lieb DMD PC)Employee was entitled to be compensated for hours worked where employer knew or should have known that the employee worked those hours even if they were not on the time records.
PR1306102/27/2014Long Xiu Zhao and Royal Bodywork Spa Corp.Petition dismissed where petitioners were not named in the order and lacked standing.
PR1317502/27/2014Sharon Reed Coluccio and Savario S. Coluccio and Fleet Street International Haircutters, Inc.Motion to dismiss untimely petition was granted.
CI1400102/27/2014Fulton County Deputy Sheriffs' Police Benevolent Association, Inc.Certificate of Incorporation -; Approved.
CI1400202/27/2014US-China Education Promotion Council, Ltd.Certificate of Incorporation -; Approved.
January 2014
Docket Number Date Issued Case Name Summary of Decision
PR0914801/16/2014Nicola Marzovilla and Valdome, Inc. (T/A iTrulli)Restaurant tip pool was improperly shared with head waiter who had meaningful management authority and wine steward who had limited service duties. Ref. Barenboim v Starbucks Corp., 21 NY3d 460 (Ct App 2013)
PR1023701/16/2014Albert F. SchweitzerConsolidated with PR10239 - Order revoked for individual petitioner where he was not an employer within the meaning of the Labor Law.
PR1023901/16/2014Sean Miles and Albert F. Schweitzer d/b/a Eats & TreatsConsolidated with PR10239: Order against Miles affirmed as default.
PR1030301/16/2014Karl Geiger A/K/A Karl Richard Geiger and Geiger Roofing Company, Inc.Order against roofing company for overtime hours not listed on time sheet affirmed where time records did not reflect time spent traveling to and from office to work site.
PR1035401/16/2014Paul Haye and Slope Jamaican Patties LLC (T/A Christie's Jamaican Patties)Wage Order affirmed with regard to identified employees where employer did not have records or any evidence of hours worked; Penalty for retaliation affirmed but modified.
PR1036501/16/2014Diogenes Collado (T/A El Rey Restaurant)Wage order modified where claimant did not testify and petitioner's witnesses established evening hour when claimant finished working.
PR1040401/16/2014Zeng Chao PanOrder against individual revoked where he was not an employer within the meaning of the Labor Law.
PR1105301/16/2014Vito Giambanco and Dream Come True Farm Inc.Wage Order affirmed where petitioner failed to present evidence to counter estimated of hours worked by employees.
PR1116001/16/2014Saad Abdullah and Falcons USA, Inc.Wage Order modified to interest and penalties only where claimant testified that he was paid his wages the week before the hearing.
PR1119801/16/2014Joaquin Turcios and Korona USA Holding Corp.Wage and penalty orders affirmed where petitioner failed to prove that he did not suffer or permit the work of the claimants.
PR1136601/16/2014Chun Il Cho and Mermaid Food Plaza Corp. (T/A Food Plaza)Petition dismissed where petitioners' address and phone number was no longer valid; appeal deemed abandoned.
PR1312501/16/2014Rudy RosenbergBoard lacks jurisdiction over petition of wage claimant to challenge Commissioner's decision not to pursue claim
PR1312701/16/2014Gennuse G. Agbisit and Orient Pearl Construction LLCMotion to dismiss untimely petition was granted.
November 2013
Docket Number Date Issued Case Name Summary of Decision
PR1000811/20/2013Sharon Rumley and Queens Comprehensive Perinatal Council, Inc.Order for unpaid wages affirmed where employee's specific testimony regarding days worked and unpaid was credible.
PR1021411/20/2013Svetislav Jovanovic a/k/a Svetislav Jovanic and Autoprevoz Trucking CorporationWage Order affirmed where deductions for a security deposit for vehicle damage, training and worker's compensation premiums were not legal.
PR1028411/20/2013Andrey Lepin and GVR Plus Inc.Wage Order revoked where claimant failed to testify and wages were not due for minimal tryout time.
PR1033311/20/2013Mark Barasch and Barasch Sound Studios LLC (T/A Sound Image)Wage Order affirmed where video and sound engineers were not exempt creative professionals.
PR1112211/20/2013Ruben Quisbe and Elys Quisbe a/k/a Cruz and Ruben Pizzas Inc. and R & Q Inc. (T/A Dominos Pizza)Wage Order affirmed where claimant credibly testified that she worked under two separate names, one provided by the employer, and therefore, time cards under only one named did not accurately reflect hours worked and overtime.
PR1115011/20/2013George Brot and Beta Business Products, Inc.Wage Order affirmed since paychex payroll journal entry was insufficient to prove that claimant had been paid.
PR1207611/20/2013Viktor Vorfi and Side-by-Side Pizza & Burek Inc.Untimely petition dismissed.
PR1210511/20/2013Denise Pliego and That's a Wrap and More Inc. (T/A That's a Wrap)Untimely petition dismissed.
PR1311211/20/2013Jose R. Manzano Jr. and GMD Construction, Inc.Orders revoked and petition granted where parties agreed that petitioners were not the employers.
CI1301311/20/2013Nnewi Union New York Tri-State, Inc.Application for Authority to Do Business in New York State -; Approved.
October 2013
Docket Number Date Issued Case Name Summary of Decision
PR1018910/02/2013Andrew Andruszko and Peter Kay Auto Sales, Inc.Order for sales commissions affirmed where employer failed to produce written commission agreement or all car purchase agreements in question.
PR1028110/02/2013Wendy Barrett Fleming and The Village Scandal Productions LLCOrders affirmed where petitioner failed to testify at hearing or present accurate time and payroll records.
PR1030510/02/2013Alexander Levy a/k/a Alexander LevitskyPetition of individual named in order against numerous entities was granted and his name was removed from order where he was not an employer within the meaning of the law.
PR1033110/02/2013David Green and Howard Goldberg and David Green Associates, Inc.Interim Decision: Petitioners David Green and David Green Associates, Inc. have withdrawn their petition with approval of the Board. Proceedings will proceed with respect to Howard Goldberg only.
PR1033510/02/2013Ofer Keynan, A&O Associates (T/A Ashkara Vegetarian Caf)Order affirmed where 4 of the claimants testified and employer admitted owing some wages and his testimony that records were stolen was not credible.
PR1039610/02/2013Juan Diaz and 191 Food Corp. (T/A Fine Fare Supermarket)Order affirmed where evidence supported finding that claimant bagger was an employee of the grocery store and store failed to present evidence of the number of hours worked.
PR1039910/02/2013Walter Stuart and H&F Taxi, Inc. (T/A Stuart's Taxi)Wage Orders revoked where claimant testified that he was aware of posted vacation policy and that he mistakenly filed claim.
PR1107010/02/2013Brite Limousine International, Inc.Order affirmed where driver of limousine company was determined to be an employee and not an independent contractor.
PR1107710/02/2013George Sukkarieh and American Landstar Transport Inc.Order for one week's wages affirmed where petitioner had no direct evidence that claimant did not work. Civil penalty for 200% based on prior violation was revoked where there was no evidence of a prior violation.
PR1111310/02/2013Ronald Suhanosky Jr.Individual consultant was not an employer within the meaning of the Labor Law.
PR1111510/02/2013Jay Baranker and USI Services Group, Inc.Order for vacation wages affirmed where employer failed to meet its burden of showing that its policy was in writing or posted.
PR1113810/02/2013Colville Ivor Bascom and North Bronx Activities Center, Inc.Orders modified per agreement of the parties.
PR1215110/02/2013Darci DeMattteo and Say Cheese and Thank You, Ltd.Orders revoked where petitioners had paid claim prior to issuance of order.
PR1219010/02/2013Eric M. VincentOrders modified to remove name of petitioner where wrong person was named.
PR1309310/02/2013Thomas C. Amendola and Ocean Bay Massage Therapy, P.C.Orders revoked where wages were paid prior to the issuance of the orders.
CI1300610/02/2013Union Beer Distributors LLCCertificate of Organization of Limited Liability Company -; Approved.
CI1300710/02/2013Union Technology CorporationCertificate of Incorporation -; Approved.
CI1301110/02/2013International Association of Fire L3316 Town of ManliusCertificate of Incorporation -; Approved.
CI1301210/02/2013Union Literary LLCCertificate of Authority to Form Limited Liability Company -; Approved.
July 2013
Docket Number Date Issued Case Name Summary of Decision
PR0931007/25/2013Edward Globokar and Gloria Tribecamex, Inc. and J.A.I., Ltd., and 300 E. 5th St. Rest., Inc. (T/A Mary Ann's)Order against restaurants for unpaid overtime affirmed but modified based on lack of employer records and testimony at hearing.
PR1003407/25/2013Steven Marchionda and International Group, LLCOrder for vacation pay affirmed where policy did not provide that employer could offset sick or holiday time used from vacation pay.
PR1006907/25/2013Angel Moina and Maria J. Moina and Napoleon Moina and La Posada Rest Inc., and Gaviota's Restaurant and Sports Bar, Inc. and Tequila Song Corp.Order against restaurant for unpaid overtime, liquidated damages, and 100% civil penalty affirmed but modified. Order for illegal deductions affirmed but modified where DOL estimate was based on arbitrary standard.
PR1015007/25/2013Angelo A. Gambino and Francesco A. Gambino (T/A Gambino Brothers Meat market Inc.)Order for overtime affirmed where salary did not cover premium for overtime.
PR1027507/25/2013Konstantine Pavlov and Pavloff, Inc.Wage Order modified where claimant failed to testify and petitioner's testimony that claimant did not work on the days in question was credible
PR1104207/25/2013Rosario A. Cornejo (T/A Rosario Cleaning)Wage Order affirmed where petitioner failed to meet her burden and her testimony at hearing was inconsistent.
PR1105207/25/2013Harold Kuemmel and Creative Trucking Inc.Petition dismissed where all notices to last known address on petition returned; appeal deemed abandoned.
PR1107507/25/2013Robbi Kumalo and Balidali Productions, Inc.Petition granted where DOL acknowledged that claimant had received wages prior to the issuance of the Order to Comply.
PR1213407/25/2013Monica GlebermanUntimely petition dismissed.
PR1213607/25/2013Susan Samuel and It Takes a Community to Raise a Child, Inc.Untimely petition dismissed.
PR1213807/25/2013Tracy L. Spinuzza and Pino's Pizzeria and Restaurant, Inc.Untimely petition dismissed.
PR1216807/25/2013Aida Pagan a/k/a Eddie Pagan, Heriberto Pagan a/k/a Eddie Pagan, Enrique Cadena a/k/a Erick Cadena and Innoworks and Restoration CorporationUntimely petition dismissed.
CI1300807/25/2013The Symphony, Opera and Ballet Employers Electronic Media AssociationApplication for Authority to Do Business in New York State -; Approved.
CI1300907/25/2013Ontario County Police Benevolent Association, Inc.Certificate of Incorporation -; Approved.
June 2013
Docket Number Date Issued Case Name Summary of Decision
PR1010206/12/2013Tomasz Wojtowicz and Tommy Transportation, Inc.Trucker was employee and not independent contractor of trucking firm where the truck was owned by the firm and drivers had a duty to report in 2x a day and were subject to certain rules; $1000 deposit to cover potential damage to truck was illegal.
PR1014506/12/2013Marvin MilichOrder based on claim of housekeeper against homeowner was modified where housekeeper's testimony was not credible and homeowner provided a more accurate estimate of hours worked.
PR1033206/12/2013Roslyn Rogers and Gothic Plastics LLC (T/A Gothic Plastics)Order for overtime due to undocumented worker who worked under two names was upheld.
PR1219706/12/2013Joao Nobrega and Nobsan, LLCUntimely petition dismissed.
PR1300906/12/2013Bestway Basement, LLCPetition granted.
PR1302106/12/2013Ravshan Ishnazarov (T/A Logistics & Services LLC)Untimely petition dismissed.
PES1000306/12/2013City of New York Department of Citywide Administrative ServicesNotices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES1000406/12/2013City of New York Department of Parks and RecreationNotices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES1000506/12/2013City of New York Department of Health and Mental HygieneNotices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES1001606/12/2013Fire Department of the City of New YorkNotices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES1100706/12/2013City University of New YorkNotices of violations under Workplace Violence Prevention Act (WPVA) and regulations were upheld and the Board found that: (1) the Department of Labor had the authority to conduct inspections without an employee referral; (2) inspections under WVPA may be conducted under PESHA; (3) the regulations requiring a written policy evaluating risks of violence and the participation of employee representatives were reasonable.
PES1100806/12/2013Stefanie A. DavisDetermination that Complainant was not retaliated against was revoked where it was unreasonable for DOL to conclude, based on its investigation, that the employer had a legitimate reason for its adverse action against Complainant.
CI1300306/12/2013Workers Education Resource Committee Inc.Certificate of Incorporation -; Approved.
CI1300506/12/2013Broome County Sheriff's Law Enforcement Officers' Association Inc.Certificate of Incorporation -; Approved.
April 2013
Docket Number Date Issued Case Name Summary of Decision
PR0915704/29/2013William C. DowOrder for unpaid wages, commissions and vacation pay was affirmed based on claimant's testimony and payment history.
PR1011204/29/2013Neil Fesette and Fesette and Fesette Realty, LLCOrder for medical expenses revoked where petitioner provided evidence that terminated employee was informed in writing that the health insurance was being terminated.
PR1018204/29/2013Maria Lasso and Jaime M. Correa, Sr., and Exceed Contracting Corp.Drywall subcontractor who contracted for labor to install the drywall was a responsible employer where he supervised the workplace and had employees doing the same work.
PR1033704/29/2013Michael Cave (Consolidated with PR10345)Petitioner was removed from order where there was no evidence that he directed or controlled claimant's work in any way.
PR1033804/29/2013Deoraj Ramnauth and Scorpio Construction, Inc.Order for unpaid wages upheld where employer failed to have any records but overtime deducted since the preponderance of the evidence established that no overtime was worked. Penalty revoked where only basis given was employer's lack of cooperation and the evidence did not support such a finding.
PR1034504/29/2013Richard Cave and U.S. Wood, LLC (Consolidated with PR 10337)Order for wages based on bounced checks was upheld even though claimant's testimony re which checks were still owed was inexact where employer failed to have necessary records.
PR1126404/29/2013Ambush Alarm & Electronics, Inc.Board reopened decision dismissing petition for failure to file an amended petition.
PR1218304/29/2013Double R. Entertainment, LLC (T/A Rick's Tally Ho)Petitioner may not raise issues already decided in prior order where order was amended to comply with Board's prior decision.
PR1219104/29/2013Gloria Wise Community Center Inc.Reconsideration of case granted where Board mistakenly opened a new file for an amended petition. Case will proceed under PR 12193 and this case will close.
CI1300304/29/2013Worker's Educational Resource Committee, Inc.Certificate of Incorporation -; Approved.
CI1300404/29/2013Worker's Center of Central New York, Inc.Certificate of Incorporation -; Approved.
March 2013
Docket Number Date Issued Case Name Summary of Decision
PR1006003/20/2013Zi Qi Chan a/k/a Zi Qi Chen and Jason Tong aka Zi Rong Tang and Henry Foods, Inc.Order for payment of overtime wages affirmed but modified and remanded for recalculation where employer had no time and payroll records and admitted to owing some wages.
PR1013403/20/2013Kwangpyo Kim and Royal Cleaners LLCOrder against dry cleaner for unpaid wages and failure to provide meal period affirmed where employerӳ records were estimates of hours worked.
PR1015303/20/2013Nicholas Salamone and Salamone Restaurants, Inc. (T/A Friar's Table)Failure to notify Board of contact information after petitioner went out of business resulted in dismissal of petition where appeal deemed abandoned. Ref. Board Rule 65.4.
PR1030203/20/2013Kenneth AhremOwner of mortgage broker was individually liable as employer where he had the authority to control claimant even if it was not always exercised.
PR1034803/20/2013Marc A. Chiffert and AEC Engineering Design & Construction Services PLLCWages and travel expenses due employee were reduced after hearing.
PES1102103/20/2013Michael DiPietroPetition for review of retaliation determination was dismissed where the Department of Labor voluntarily agreed to investigate further.
February 2013
Docket Number Date Issued Case Name Summary of Decision
PR0908402/06/2013Communication Empire Corp. (T/A Blue Wireless)Petition dismissed where petitioner address and phone number were no longer valid; appeal deemed abandoned.
PR0922702/06/2013Robert RubinFinancial advisor of company was not an employer where he did not hire, fire or control employees, or have an ownership interest in the company.
PR0925802/06/2013William A. EtterPetitioner who was discharged in Bankruptcy no longer owed the wages but penalty debt remained.
PR1007602/06/2013John D. Givens and JDG Investigation, Inc.Employer policy mandating a one hour deduction of time for lunch whether it was taken or not was illegal; petitionerӳ unrebutted credible testimony that claimant was fully paid satisfied burden.
PR1133702/06/2013Rossana Bortone, Emilio Lamanna and Almar Supplies, Inc.Interim Decision: Labor Departmentӳ motion for permission to withdraw and reissue orders to recalculate wages owed applying the Motor Carrier Exemption was granted.
PR1205602/06/2013Edwin Ernesto Avila and Roberto Rosa and Sogna Restaurant Corp. (T/A The City Tavern)Motion to dismiss late petition was granted.
PES1000202/06/2013Jay GuslerPetitionerӳ claim of retaliation was dismissed where issue was thoroughly litigated in an arbitration relative to his discipline. Ref. Collins v New York City Transit Authority, 305 F3d 113 (2d Cir 2001).
PES1100302/06/2013Village of TarrytownPESH determination that villageӳ violations were willful were upheld where village failed to take effective measures to prevent employees from entering permit-required confined spaces. Ref. 12 NYCRR 830.2(k); 29 CFR 1910.146.
CI1300102/06/2013Tioga County Law Enforcement Association, Inc.Certificate of Incorporation ֠Approved.
December 2012
Docket Number Date Issued Case Name Summary of Decision
PR0920812/14/2012Keith Woronoff and Katzӳ Furniture Corp. (T/A La-z-Boy)General manager was not liable where an analysis of his duties did not come within the definition of employer.
PR0938912/14/2012Violetta Gladyshev and Edouard Gladyshev (T/A V & V Bulk Carriers, Inc.)Petitionerӳ testimony was sufficient to support finding that claimant failed to perform the work for which he claimed nonpayment where claimant failed to testify.
PR1005012/14/2012Linden Joseph Tudor and H.Q. Lounge Inc.Wage Order based on an estimate of hours worked was affirmed where employer could not establish an ԡccurate estimateԠof hours worked; tip allowances were not available where there was no record of tips however a tip credit based on an average claimed by claimants was given.
PR1012912/14/2012Arthur V. Coppola, Jr. and Allbrand Commercial Windows & Doors, Inc.Determination of whether commissions were owed and how much was due was determined by interpreting the contract; profitability of contract assumed where petitioner failed to introduce any evidence.
PR10373i12/14/2012Richard Geist and Armynavydeals.com Corp.Interim Decision: Board grants DOL permission to amend orders to include two additional parties.
PR1114612/14/2012Perry Stuart and Joseph Stanza and Long Island Limousine Service Corp.Petitioner failed to satisfy its burden of proof where payroll records were submitted for the first time at hearing and the records were incomplete and inconsistent with testimony.
PR1126412/14/2012Ambush Alarm & Electronics, Inc.Reconsideration of decision denied where petitioner failed to apply in a timely manner.
PR11321i12/14/2012Joseph EnnisInterim Decision: motion to dismiss petition as untimely denied.
PR1132812/14/2012David D. D'Amato and Buffalo Security and Investigation, LLCMotion to dismiss untimely petition was granted.
PR11331i12/14/2012David RingInterim Decision: motion to dismiss petition as untimely denied.
PR1134212/14/2012Qui Ying ChenPetition granted and order modified to remove petitionerӳ name.
PR1213012/14/2012Gary Smith and Tropical Associates, Inc.Motion to dismiss untimely petition granted.
PR1214312/14/2012Ram R. Kissoon (T/A Rudy Trucking)Motion to dismiss untimely petition granted.
PES1100912/14/2012Janice RazzanoDetermination that petitioner was not subject to retaliatory action was reversed and remanded where business reason for reduction in petitionerӳ work hours needed further investigation.
CI1000112/14/2012Expo Union CorporationCertificate of Incorporation ֠Application dismissed without prejudice for failure to provide additional information.
CI1101212/14/2012Union Trade Wholesale Corp.Certificate of Incorporation ֠Application dismissed without prejudice for failure to provide additional information.
CI1101312/14/2012Public Union CorporationCertificate of Incorporation ֠Disapproved
CI1101912/14/2012Union Benefit Financial Services, LLCCertificate of Incorporation ֠Application dismissed without prejudice for failure to provide additional information.
CI1200112/14/2012United Writers UnionCertificate of Incorporation ֠Application dismissed without prejudice for failure to provide additional information.
CI1201312/14/2012Don Bosco Workers, Inc.Certificate of Incorporation ֠Approved.
October 2012
Docket Number Date Issued Case Name Summary of Decision
PR0817410/17/2012Yick Wing Chan and Wing Huang Restaurant Corp.Order finding individual to be an employer under Article 19 of the Labor Law affirmed where evidence showed that individual sufficiently controlled the employees' conditions of employment. The fact that the individual employer was not present at the restaurant on a daily basis supervising the employees did not relieve him of liability. Refs: Herman v RSR Security Services Ltd., 172 F3d 132 [2d Cir 1999]; Donovan v Janitorial Services, Inc. , 672 F2d 528 [5th Cir 1982]; Carter v Dutchess Community College , 735 F2d 8 [2d Cir 1984]; Moon v Kwon , 248 F Supp 2d 201 [SDNY 2002].
PR0914010/17/2012Giovani Lake a/k/a Gemini Lake (T/A DVEIC/PR Consultants)Claimant awarded wages even though petitioner denied employment where petitioner failed to carry burden of proof.
PR0923510/17/2012Leticia Walker (T/A Connelly Drywall LLC)Construction subcontractor liable as an employer of alleged sub-subcontractors employees as matter of economic reality.
PR0927910/17/2012Leticia Walker (T/A Connelly Drywall LLC)Construction subcontractor liable as an employer of alleged sub-subcontractors employees as matter of economic reality.
PR0928110/17/2012Patrick J. Madden and Madden Construction Co. Inc.Outside salesman for home improvement construction company was an employee and was owed commissions.
PR1000410/17/2012Steven Klein and Steven Klein, M.C., P.C.Vacation pay awarded one claimant who testified that she was never shown written vacation policy which called for forfeiture; claimant who failed to testify could not rebut petitioner's testimony that she was shown policy.
PR1023610/17/2012Ann L. Heiderreich and Scott C. Shipley and Louis S. Jensen and Susan C. Kramer and Community Energy Service, Inc.Petition granted and orders are withdrawn where payment was received.
PR1140310/17/2012David B. ItzkowitzReconsideration granted and Board's decision of July 16, 2012 is hereby revoked and the amended petition is hereby filed.
CI1201810/17/2012Beer Union Ltd.Certificate of Incorporation ֠Approved.
September 2012
Docket Number Date Issued Case Name Summary of Decision
PR0506709/10/2012Altour Service, Inc.Mandatory gratuities which were billed to customers of a limousine company as gratuities and which customers believed to be for drivers, belonged to the drivers under Labor Law Ǡ198-d and were not waived. Ref. Samiento v World Yacht, Inc., 10 NY3d 70 (2008)
PR1001209/10/2012Martin Goonetilleke A/K/A Shawn Goonetilleke A/K/A Shanthipa Goonetilleke and Extraordinary DVD Video Corp. (T/A Extraordinary DVD & Video)Order affirmed where petitionerӳ evidence that claimant did not work for him was not credible.
PR1007509/10/2012Robert Reitman and B. Reitman Blacktop, Inc.Order affirmed as modified to acknowledge that some wages had been paid to one claimant but otherwise petitioner failed to carry its burden of proof where there were no records.
PR1010909/10/2012Paul J. MontaltoOrder revoked as to individual employer where he did not hire, fire, supervise or control payroll.
PR1013209/10/2012Daniel Delisa and Champion Maintenance Contractors Inc.Order modified but upheld where individual fit the definition of employer of all three claimants.
PR1037409/10/2012Sean Piasecki and Eastern Medical Support, Inc.Order concerning vacation pay and insurance payments was valid where individual contract was signed despite contrary provisions in personnel manual. Order reimbursing claimant for cell phone charges was revoked where there was no evidence that there was any agreement.
PR1132009/10/2012William Thygesen (T/A Buffalo CDL Training Institute)Motion to dismiss untimely petition granted.
PR1138009/10/2012Suzuki 112 USA LLC (T/A 112 Mitsubishi)Motion to dismiss untimely petition granted.
PR1138809/10/2012Paul Gambino and P.C. Consulting Management Corp.Motion to dismiss untimely petition granted.
PR1203109/10/2012Aldo R. Mosquera and H.A.B. Inc. (T/A Home Boys Auto Boutique)Motion to dismiss untimely petition denied where there was improper service of the order and it is insufficient to mail one copy to two parties.
CI1201409/10/2012Niskayuna Permanent Firemanӳ AssociationCertificate of Incorporation ֠Approved.
CI1201509/10/2012Association of Women Accountants in Real Estate, Inc.Certificate of Incorporation ֠Approved.
CI1201609/10/2012Muttontown Police Benevolent Association Inc.Certificate of Incorporation ֠Approved.
CI1201909/10/2012Commanding OfficersҠAssociation of the MTACertificate of Incorporation ֠Approved.
July 2012
Docket Number Date Issued Case Name Summary of Decision
PR0905007/16/2012Elhannon, LLC (D/B/A Elhannon Wholesale Tree Nursery)Employees of tree nursery who also worked part of the week in employerӳ landscaping business doing work other than planting the nurseryӳ trees were not exempt from overtime for that week under the agricultural exemption.
PR0911707/16/2012Dr. Sabrina Shue and Dr. Joseph Ho and Advanced Solutions Pain Management, PLLCEmployer may not deduct salary advances from future paychecks even if employee signs over paycheck.
PR1117007/16/2012Michael Bergold (T/A Harbors Asset Construction)Motion to dismiss untimely petition granted.
PR1138707/16/2012Donald V. Pearce (T/A Affordable Home Improvement)Motion to dismiss untimely petition granted.
PR1139907/16/2012137 7th Avenue CorporationInterim Decision: Motion to withdraw and amend order to add new party was granted.
PES0901207/16/2012Jay GuslerCommissioner determination that verbal dispute at work did not give rise to general duty clause violation was affirmed.
CI1200607/16/2012Bricklayers & Allied Craftworkers Local 5 New York Realty CorporationAmendment to Certificate of Incorporation ֠Approved.
CI1200707/16/2012Screen Actors Guild ֠American Federation of Television and Radio ArtistsApplication for Authority to do business in New York State ֠Approved.
CI1201007/16/2012Washington County Deputy Sheriffӳ Police Benevolent Association, Inc.Certificate of Incorporation ֠Approved.
CI1201107/16/2012Herzliya Films, LLC (Union HZ)Certificate of Assumed Name ֠Approved.
CI1201207/16/2012Peekskill Police Superior Officers Association, Inc.Certificate of Incorporation ֠Approved.
May 2012
Docket Number Date Issued Case Name Summary of Decision
PR0920205/30/2012Soraya Sampson and Urban League of Westchester County, Inc.Employer may not make deduction from an employeeӳ final wages for advanced vacation days; civil penalty revoked where testifying investigator did not know reason for penalty. Ref: Labor Law 193.
PR0921805/30/2012George Muller and Ivan Muller and 615 Ocean Avenue Realty Corp.Order finding building owners owed several months of unpaid wages to superintendent modified where petitioners produced records meeting their burden of proof to show that most of the wages had been paid.
PR0925405/30/2012Nick Malegiannakis and NSM Restaurant Corp. (T/A Michaelӳ Diner)Order finding petitioners paid waitresses less than minimum wage affirmed where in the absence of payroll records, petitioners did not meet their burden of proof, and the Commissionerӳ determinations and calculations were reasonable. Furthermore, it was reasonable for the Commissioner not to provide the petitioners a tip credit and meal allowance, where the petitioners did not keep records of tips earned and meals provided. Order finding the petitioners made illegal deductions from their employeesҠwages revoked where no evidence supported such order. Refs: 12 NYCRR 137-3.4 [c] [2009]; 12 NYCRR 137-3.8 [2009]; Bakerman. Inc. v Roberts, 98 AD2d 965 [4th Dept 1983]; Padilla v Manlapaz, 643 F Supp 2d 302, 310 [EDNY 2009].
PR0927005/30/2012Ruth Sullivan and TLC Moving & Storage, Inc.Order awarding expense reimbursement revoked where petitioner proved that expenses were unnecessary and there was no agreement to pay; Wage Order reduced where petitioner proved some payment.
PR0939005/30/2012Jay Metz and Alicia H. Metz and Lauren Simmons and GRJH, Inc. (T/A Sunoco Queensbury)Motion to dismiss case made after petitioner presented case at hearing was granted where petitioner failed to make a prima facie case.
PR1002105/30/2012Akihiko Hirahata (T/A Torigo Japanese Restaurant)Order finding petitioner failed to pay overtime modified where evidence showed employees did not work as many hours as determined by the Commissioner. Petitioner, however, failed to prove that employees were paid an hourly rate, and Commissionerӳ determination that employees were paid a weekly salary was reasonable. Where employees were paid by a weekly salary, regular hourly wage rate is calculated by dividing the gross wages paid by the number of hours worked in a week. Overtime rate is one and one-half times the regular hourly rate. Refs: 12 NYCRR 137-1.3 [2009]; 12 NYCRR 137-3.5 [2009].
PR1006405/30/2012Rick Fiallo, Frank Marino, and FM Cleaning Inc. (T/A Maid Pro)Order affirmed where petitionersҠown records indicated that claimant worked more hours than were paid for.
PR1023205/30/2012Dervish Kraki and Besim Kraki and Turnpike Deli Bagels and Bakery Inc.Wage order affirmed for one claimant but revoked as to wages due another claimant where all testimony indicated that claimant was never employed by petitioner.
PR1026205/30/2012Jose CastellanosInterim Decision: Commissionerӳ application to withdraw order and issue new orders to correct error and name new party was granted.
PR1030005/30/2012Thomas Schneider and Jim Celli and TNT Transportation, Inc.Order finding that petitioners owed wages to a dispatcher modified where petitioners produced records showing that some of the wages were paid.
PR1112405/30/2012Jae Kun Jung and Sik Young Kim and 158 W Food Corp. (T/A Times Deli)Minimum wage order affirmed where petitioners did not produce credible evidence that employees were paid in accordance with Article 19, and where Commissioners determinations and calculations were reasonable. Order finding that the petitioners appropriated gratuities from service employees also affirmed, where evidence showed that credit card tips were pooled and shared with non-service employees in violation of Labor Law 196-d. Refs: Labor Law 196-d; Hartnett v. Wade-Mark Eleven, Inc., 156 AD2d 559 [2d Dept 1989].
PR1125605/30/2012William Robbins and Rubberform Recycled Products, LLCApplication for Reconsideration granted and decision of December 14, 2011 is revoked.
PR1126805/30/2012Perry Davis (dba Buckeyes Chicken)Interim Decision: Commissionerӳ application to withdraw orders and issue amended orders to add corporation as a party.
PR1127105/30/2012Isaac Stein and Monroe Orthotics and Prosthetics Inc.Motion to dismiss untimely petition granted.
PR1128705/30/2012Sonia A. Dixon (T/A Dixon Paralegal & Expediting Services, Inc.)Motion to dismiss petition for failure to state a cause of action was granted where only ground alleged was financial hardship of petitioner.
PR1133905/30/2012Dustin DiMisa and Intercontinental Capital Group, Inc.Motion to dismiss untimely petition granted.
PES0900105/30/2012Robert ShapiroCommissioner determination that adverse employment action was not in retaliation for health and safety complaint was affirmed.
PES-10-01705/30/2012Engelke Farms, LLCMotion to dismiss petition for failure to state a cause of action was granted.
CI1200205/30/2012Amoseastern Apparel, Inc. (Huyton Union)Certificate of Assumed Name ֠Approved.
CI1200805/30/2012Security Officers and Drivers, Association Employed by the College of Saint Rose, Inc.Certificate of Incorporation ֠Approved.
CI1200905/30/2012HHC PBA Inc.Certificate of Incorporation ֠Approved.
March 2012
Docket Number Date Issued Case Name Summary of Decision
PR0808403/29/2012Paul Muller and Marcia Muller and Friendly Transportation, Inc.Order for wages due to livery driver upheld as modified where employer had no records but wages adjusted based on claimant's testimony at hearing.
PR0903403/29/2012Mohamed Oummih Order against individual affirmed as to one claimant and revoked as to the other where they worked at different times and individual only supervised and paid one of the claimants and not the other.
PR0803503/29/2012Nick Malegianniakis and NZM Restaurant Corp. (T/A Michael's Diner) Order finding that petitioner retaliated against claimant revoked where date on order preceded filing of claim.
PR09017003/29/2012Dennis Brinkworth and Colter Bay Grill, Inc. (T/A Colter Bay Grill) Petition dismissed where petitioner's address and phone were no longer valid; appeal abandoned.
PR0918703/29/2012John E. Jeffers and J.J. Maddens Inc. (T/A Buona Sera) Wage Order for restaurant chef upheld where petitioner failed to prove chef was partner.
PR0919703/29/2012Nancy Solomon and John Ellertsen and Dorothy Jacobs and Long Island Traditions, Inc. Wage supplements order on vacation wages was upheld where petitioner provided contradictory statements regarding contents of vacation policy.
PR0924903/29/2012Jerwaine Gorman and J. Gorman Investment Group, LLC (T/A Cold Stone Creamery) Petition dismissed where petitioner failed to appear at hearing after he requested and agreed to the adjournment date.
PR1039403/29/2012Yakov BasmanovPetition dismissed where petitioner failed to amend orders to state the reasons they were invalid or unreasonable.
PR1107003/29/2012Farhat N. Qureshi and Brite Limousine International, Inc.Interim Decision: Motion to dismiss late petition granted in part and denied in part based on service.
PR1108203/29/2012GMA Mechanical Corp., and Gina YanucciApplication for reconsideration was granted and Decision dated September 9, 2011 was revoked.
PR1124603/29/2012Cheryl Joyles (T/A Madison Day Care)Motion to dismiss untimely petition granted.
PR1128203/29/2012James Napolitano and Napolitano Brothers, Inc. (T/A The Eatery on North) also (T/A The Avenue Deli Cafe)Motion to dismiss untimely petition granted.
PR1128403/29/2012Rejik Majtara and Universal Construction & Painting Corp.Motion to dismiss untimely petition granted.
PES1101003/29/2012Paul DankoPetition to review determination that petitioner did not suffer a retaliatory termination was denied where protected activity occurred 10 years prior and evidence of other misconduct supported termination so that the Department of Labor's determination was not unreasonable or invalid.
CI1200303/29/2012Women's National Basketball Players Association Inc.Certificate of Incorporation - Approved.
CI1200403/29/2012Sheriff's Employees Association of Cayuga CountyCertificate of Incorporation - Approved.
CI1200503/29/2012New York Civil Liberties Union Foundation, Inc.Certificate of Incorporation - Approved.
January 2012
Docket Number Date Issued Case Name Summary of Decision
PR0914401/30/2012Alan Crowley and Teknex NY, Inc.Orders affirmed where petitioner departed hearing after settlement offer was not accepted.
PR0915901/30/2012Alejandro Celso SaavedraApplication for reconsideration of dismissal of petition for failure to appear at hearing denied .
PR0916501/30/2012Anthony Bove and Above Construction Corp.Orders affirmed where petitioner failed to prove he did not employ claimant.
PR0925701/30/2012Ranjana Khan and Naeemuddin Khan and Phoenix Hand Embroidery, Inc.Penalty for failure to register as an apparel contractor revoked where no evidence that petitioner had employees.
PR0930301/30/2012Jin Rong Huang (A/K/A James Huang) and Dawn Fashion, Inc.Motion to dismiss petition granted where petitioner failed to produce any evidence at hearing.
PR0930701/30/2012Laura Harbour and Kal-Harbour, Inc. (T/A Harbour Roads)Orders modified where claimant was not an independent contractor and was due minimum wage.
PR0931301/30/2012Peter Durkin and R & R Services, Inc. (T/A Orange Heating & Air Conditioning) A/K/A Orange Heating & Central AirOrder for vacation pay upheld where office manager supported claimant's version of policy and petitioner failed to produce a written policy.
PR0933901/30/2012Carlos Espinoza and K & P Cleaning Co.Cleaning company was liable for unpaid wages where it failed to proved that employment had ended.
PR1029301/30/2012Kong Ming Lee, Fee Yin Lee and Blue Butterfly Fashion, Inc.Interim Decision: Motion to strike certain items in the Demand for Bill of Particulars granted in part and denied in part and document demand limited.
PR1038201/30/2012Michael DeRubertis (T/A DeRubertis Auto Services and Sales)Petition dismissed where knee surgery did not excuse late filing.
PR1038301/30/2012Pat RuppertReconsideration granted, decision dated April 27, 2011 is revoked and Petitioner is directed to file an amended petition.
PR1040201/30/2012John Donovan and Lilia Shevchuk (T/A Greenlight)Motion to dismiss untimely petition granted.
PR1040801/30/2012Raymond SrourWithdrawal of order approved by Board.
PR1104301/30/2012John M. Marra and Long Island Emergency ServicesMotion to dismiss untimely petition granted where petitioner filed his petition two months rather than 60 days after the orders issued.
PR1124501/30/2012Jason Ellis and Cakes by Jay, Inc.Motion to dismiss petition for failure to state a cause of action granted where only allegation concerned lack of funds and bankruptcy filing.
PES1100501/30/2012Molly HastingsPetition denied where petitioner failed to establish termination was retaliatory in violation of PESHA
CI1101701/30/2012Mama Lor's Union Hill Cafe, Inc.Certificate of Incorporation - Approved.
CI1101801/30/2012National Association of FSA County Office EmployeesCertificate of Incorporation - Approved.
December 2011
Docket Number Date Issued Case Name Summary of Decision
PR0703112/14/2011David R. Fenske (T/A AMP Tech and Design Inc. f/k/a AMP Technologies)Individual, who was sole shareholder, officer of the corporation and signatory on paychecks, was liable as an employer for unpaid wages and civil penalties; but not liable for vacation pay where he was not the employer when the vacation pay was earned.
PR0909112/14/2011Guardian Loan Company of Massapequa, Inc. (T/A Guardian Loan)Employee handbook setting forth conditions for when a commission to a mortgage consultant is due and owing was controlling where instances where it was not followed were exceptions to the rule.
PR0912712/14/2011Piotr Golabek and Amica Corp.Construction workers were employees and not independent contractors of general contractor where he controlled the worksite; estimate of wages owed was adjusted downward.
PR0922012/14/2011Kiernan J. Traynor and Kiernan J. Traynor P.T., P.C. (T/A Summit Sports & Spinal Physical Therapy)Order finding that employee was owed one week's wages was affirmed where employer only produced ADP records which did not contain a record of hours worked.
PR0924612/14/2011Lo Hsen Kuo and Five-Star Class Dancing Studio, Inc.Order for unpaid wages and penalties affirmed where employer had no records and first denied employing claimant at all.
PR0925212/14/2011Dorothy Giorgianni and Jamaica Towing, Inc.Order requiring the payment of employee's medical expenses where employer failed to notify employee when benefits terminated was affirmed.
PR0928812/14/2011G.R.J.H., Inc., Alicia Metz and Lauren L. SimonsOrder adjusted where petitioners proved that some wages were paid; penalty order for failure to furnish records upheld where records were kept out of state and were not produced in New York.
PR0929812/14/2011Heenam Bae A/K/A Hee Nam Bae A/K/A Henry Bae & Daekyung Bae A/K/A Dae Kyung Bae & Fancy Lexington Ave. Cleaners Inc. T/A Mme. Lucille CleanerBoard's September decision clarified but otherwise reconsideration denied; petitioners' assumptions regarding speed of work was insufficient to provide an accurate estimate that would sustain their burden of proof.
PR0930412/14/2011Aftabudeen Ahmad Edun (T/A Edun Variety Store)Order revoked where petitioner proved that claimant was not an employee, in absence of claimant's testimony, despite lack of records.
PR1021412/14/2011Autoprevoz Trucking Corp.July decision dismissing petition is revoked and case is reopened.
PR1027812/14/2011Hedy Kodogiannis and Gus Kodogiannis and McGuiness Management Corp.Board's decision dismissing petition is revoked per settlement and withdrawal of petition approved.
PR1119512/14/2011Leonard Lattanzio and A & L Services LLCMotion to dismiss untimely petition granted.
PES1101512/14/2011Review of Modification of Abatement Date Granted to the City of New York Fire DepartmentModification of Abatement Date by PESH upheld where no response to notice was filed. Ref. 12 NYCRR 804.7
October 2011
Docket Number Date Issued Case Name Summary of Decision
PR0807810/11/2011RAM Hotels, Inc. (T/A Rodeway Inn)Order for unpaid wages for husband and wife desk clerks at motel based on 91 hours of work per week upheld where employer failed to have records and testimony that they worked only 40 hours per week was not credible.
PR0812410/11/2011Prakash Hundalani and Sherry's Restaurant of NY (T/A Mi Nidito)Order for unpaid wages due kitchen staff at restaurant, including unidentified employees, was affirmed. Commissioner of Labor may issue order based on its investigation, filing of wage claim is not required. Ref: Garcia v Heady, 46 AD3d 1088 (3d Dept 2007); Reich v Petroleum Sales, Inc., 30 F3d 654 (6th cir 1994)
PR0913910/11/2011Anthony Giarletta (T/A Grill Beverage Barn) also (T/A GCG Beverage Corp.)Order finding petitioner liable for overtime wages modified where petitioner proved that the claimant did not work the number of hours per week found by the order and where claimant was absent from the country for a period of time each year. Additionally, order imposing a civil penalty against the petitioner for failing to provide the claimant with a 30 minute meal period each shift was revoked where evidence demonstrated that the claimant did have a 30 minute meal period each month. Civil penalties for failure to provide wage statements and failure to keep required records reduced from $3,000 to $1,000 each because there was no proof of prior violations. Refs: Labor Law 218.
PR0932510/11/2011Ralph Amoruso and Lawrence Amoruso A/K/A Larry Amoruso and Florio's Enterprises, Inc. (T/A Florio's Grill and Cigar Bar)Motion for reconsideration was granted where dismissal was based on failure to amend the petition.
PR0932810/11/2011Jeffrey a. Heath and Landstone Search Crop. (T/A The Landstone Group) also (T/A Management Recruiter of Manhattan)Order finding commissions due to executive recruiter revoked where petitioners met burden of proof to show that conditions set forth in commissions agreement for earning a commission had not been met by the claimant on the disputed transaction.
PR1008110/11/2011Davinder S. Makan and Makan Land Development-One LLCOrder for unpaid wages was affirmed where records were deficient and petitioner failed to prove employee was paid.
PR1037110/11/2011David IshayMotion to dismiss untimely petition granted.
PR1037210/11/2011Timothy Sorenson (T/A Ocean Contracting/ Dumpsters 4 Less)Motion to dismiss untimely petition granted.
PR1103310/11/2011Bickram SinghMotion to dismiss untimely petition granted.
PR1103410/11/2011Pjeter Vulaj and Veteti CorpInterim Decision: Motion to dismiss untimely petition denied where individual petitioner was served at home address. Ref: Labor Law 33.
PR1106910/11/2011Ramdat K. Harihar and R & C Apparel Corp.Motion to dismiss untimely petition granted.
PR1107610/11/2011Victor QubrusiMotion to dismiss untimely petition granted.
PR1116210/11/2011Jason S. Gross and Corporate Security Installations, Inc.Motion to dismiss untimely petition granted.
PES1000910/11/2011Adam CrownResignation from volunteer Fire Department under threat of discipline and criminal charges was adverse action in retaliation for voicing health and safety concerns. Ref: Labor Law 27-a (6) (c)
CI1101510/11/2011Local 12 Union Advancement Fund, Inc.Certificate of Dissolution - Approved.
CI1101610/11/2011United Laundry Association, Inc.Certificate of Incorporation - Approved.
September 2011
Docket Number Date Issued Case Name Summary of Decision
PR0808309/09/2011Omar Thabet and La Gallina Inc. "Rev'd by Thabet v Department of Labor, Sup Ct, Kings County, March 29, 2012, Ruchelsman, J., Index No.25325/11." Order for unpaid wages upheld, but modified, where employer failed to keep records and testimony was inconsistent even though employer argued that claimant never worked for him.
PR0910109/09/2011Bernard J. Lombardi and Allan Greenstein and John Lombardi and Automatic Appliance Parts Inc.Order finding that employee was due difference between base salary and guaranteed yearly earnings was upheld; severance pay tendered and accepted could not be revoked; yearly guarantee did not extend into second year of employment where there was renegotiation.
PR0912309/09/2011Yossi's Grill, Yossi's Grill, Inc., Joseph Shaubi, EMEJ Inc. (T/A Yossi's Grill)Order for unpaid overtime wages was upheld yet modified where both employer and employee testified that the employee was paid on an hourly basis and not by salary.
PR0913209/09/2011Manshui S. Ng and MLW Co., Inc.Motion for reconsideration of dismissal of untimely petition denied.
PR0920009/09/2011Knight Marketing Corporation of New York State (T/A Knight Marketing Corp. of NY)Order for full, not partial, flex leave pay upheld even though employee did not complete full year of employment, where policy credited employee with flex leave at beginning of year.
PR09298r09/09/2011Heenam Bae and Daekyung Bae and Fancy Lexington Ave. Cleaners, Inc. (T/A MME Lucille Cleaners)July 26, 2011 decision corrected and reissued.
PR1024609/09/2011James Jae Kwon and Ace Wine < Liquor of Shirley, Inc.Motion to dismiss untimely petition granted.
PR1029009/09/2011Healthcare Services Group, Inc.Motion to dismiss untimely petition granted.
PR1101309/09/2011Shabbat LLCMotion to dismiss untimely petition granted.
CI 1101409/09/2011United Service Workers Labor-Management CorporationCertificate of Incorporation - Approved.
July 2011
Docket Number Date Issued Case Name Summary of Decision
PR09172r07/26/2011Santos D. Soto and Burnside Beverage Center Inc.Application for reconsideration of dismissal of petition for failure to amend was denied where petition was also untimely.
PR0929807/26/2011Heenam Bae and Daekyung Bae and Fancy Lexington Ave. Cleaners, Inc. (T/A Mme Lucille Cleaners)Order affirmed for unpaid overtime where Petitioner's evidence was insufficient to meet their burden of proof to show that claimant did not work the hours claimed.
PR0935407/26/2011Guillermo M. Ramirez and Julio C. Ventura and Memo Apparel, Inc. (T/A Hart Knitwear, Inc.)Order affirmed, subject to recalculation of wages based on evidence at hearing, where Petitioner's evidence was not credible and was too general to meet their burden of proof, and where Respondent's evidence was credible and specific.
PR10194r07/26/2011Lawrence Pesce (T/A Renovation and Rehabilitation Systems Co., Inc.)Application for reconsideration of dismissal of petition for failure to amend was denied where petition was also untimely.
PR1021407/26/2011Stanislav Jovanovich and Autoprevoz Trucking Corp.Motion to dismiss untimely Petition was granted.
PR1039707/26/2011Anton Dragonides and Maine Service Corp.Motion to dismiss untimely Petition was granted.
PR1103107/26/2011Jack Abraham and Nora AbrahamMotion to dismiss untimely Petition was granted.
PR1104307/26/2011John M. Marra and Long Island Emergency ServicesMotion to dismiss untimely Petition was granted.
PR1109107/26/2011Ricardo R. GoursahabMotion to dismiss untimely Petition was granted and Board lacked jurisdiction to review letter where it was not a rule, regulation or order of the Commissioner.
PES1001907/26/2011City of New York Administration for Children's ServicesMotion to dismiss untimely Petition was granted.
PES1100607/26/2011Bullville Fire DistrictPetition for modification of abatement date pursuant to 12 NYCRR 804.7 was dismissed by Board where there were no responses filed.
CI1100907/26/2011New York City Parents Union, Inc.Certificate of Incorporation - Approved.
CI1101007/26/2011St. Lawrence County Sheriff Supervisory Assoc. Inc.Certificate of Incorporation - Approved.
CI1101107/26/2011Village of Chester Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
June 2011
Docket Number Date Issued Case Name Summary of Decision
PR0708606/07/2011PK Restaurant, LLC (T/A 212 Restaurant)Order awarding overtime wages to restaurant wait staff and kitchen staff upheld where wages and salary did not include premium pay for overtime. Civil penalties reduced where employer was not shown Department of Labor's audit until hearing. Ref. Matter of Cayuga Lumber, Docket No. PR 05-099 (September 26, 2007)
PR0815606/07/2011Double R Entertainment, LLC (T/A Rick's Tally-Ho)Order finding exotic dancers were the petitioner's employees under Article 19 of the Labor Law, not independent contractors as alleged by the petitioner was affirmed where evidence showed that as a matter of economic reality the dancers depended on the petitioner's business to render their services and were not in business for themselves. 200% civil penalty was revoked. Order finding that petitioner unlawfully charged a drink fee to its employees in violation of Article 6 of the Labor Law modified to reduce the amount found due and owing to conform to the evidence. Refs: Reich v Priba Corp., 890 FSupp 586 (N Dist Tex 1995); Reich v Circle C Investments, 998 F2d 324 (5th Cir 1993); Harrell v Diamond A Entertainment, Inc., 993 FSupp 1343 (M Dist Fla 1997); Labor Law 193.
PR0911006/07/2011Pauline Thompson and Merle ThompsonOrder finding companion was an employee revoked because the claimant, who was a companion who lived in the home of a sick, convalescing or elderly person, whose principal duties did not include housekeeping, was exempted from the then in effect definition of employee. Refs: 12 NYCRR 142-2.14 (c) (1) (ii) (2007); Labor Law 651 (5) (2011).
PR0932906/07/2011IIan Timkin and Danny Bass (T/A Holy Land Enterprise) (T/A Prestige Car Rental)Application for reconsideration of Board decision dismissing petition where petitioner failed to appear at hearing was denied where petitioner failed to show good cause for its absence.
PR1029706/07/2011David Savatteri and NYC Photobooth, Inc.Motion to dismiss untimely petition granted.
PR10334i06/07/2011David Savatteri and NYC Photobooth, Inc.Interim Decision: Commissioner's motion to withdraw and reissue orders was granted.
PR10356i06/07/2011Jacinto Abreu and Roseari Meat Market, Inc. (T/A Super Extra Supermarket)Interim Decision: Motion to dismiss petition as untimely denied where petitioner was served at home by mail, contrary to Labor Law 33, and home was not "last known place of business."
PR11024i06/07/2011Seok H. Park and Totowa Trading, Inc. (T/A Totowa Trading, Inc.)Interim Decision: Stipulation to revise Order approved by the Board.
PES 10003i/SA 1000806/07/2011City of New York Department of Citywide Administrative ServicesInterim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10004i/SA 1000406/07/2011City of New York Department of Parks and RecreationInterim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10005i/SA 1000706/07/2011; City of New York Department of Health and Mental HygieneInterim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
PES 10016i/SA 10-01206/07/2011Fire Department of the City of New York; District Council 37, AFSCME, Municipal Labor Committee, Intervenors.Interim Decision: Petitioners administrative agencies of New York City sought to stay enforcement of PESH orders relating to violation of Workplace Violence Prevention Act regulations. Board denied stay where Petitioners failed to show that stay was necessary or that it would not unduly prejudice Petitioner's employees. Ref. Labor Law 27-b; Board Rule of Procedure and Practice 66.9(a).
CI 1100706/07/2011St. Lawrence County Deputies Association, Inc.Certificate of Incorporation - Approved.
April 2011
Docket Number Date Issued Case Name Summary of Decision
PR0905204/27/2011Joel D. Fairbank and 2nd Nature, LLCOrder for vacation pay and dental expenses revoked where vacation policy was posted in a conspicuous place and employee failed to correctly opt for dental insurance.
PR0907204/27/2011Vasos AntoniouDay laborers were employees of construction contractor where he hired, supervised and controlled their work.
PR0910704/27/2011Kanwalkdev S. Sra A/K/A Kanwal S. Sra and Manat Grenwal A/K/A Manjit Singh Grewal and Archer Car Wash Inc. (T/A Archer Car Wash) also (T/A Archer Car Wash & Detailing Center)One individual petitioner removed from order per stipulation, otherwise petition dismissed for failure to appear at hearing.
PR0910904/27/2011Adam Suchin and Edna Suchin and Adam Suchin Showroom Ltd.Salesperson for designer showroom who was paid a weekly draw based on a yearly compensation was an employee and not an independent contractor; Edna Suchin removed from order since she was not an employer within the meaning of labor law.
PR0912604/27/2011Karma Group LLC (T/A Quiznos Sub)Child Labor citations upheld as well as penalty for withholding tips from employees.
PR0915404/27/2011Ira Sumkin and M&I Holdings, Inc. (T/A Master Exterior & Design)Order to pay commissions reduced according to agreement where employer proved that one of the sales was cancelled; civil penalty was revoked.
PR0919404/27/2011David SerafinStipulation removing petitioner's name from order and withdrawing petition was approved by the Board.
PR0920704/27/2011Jeffrey W. Ash (T/A Northeast Home Theater)Husband of business owner was an employer where he hired the employee, supervised her and decided whether she should be paid.
PR0928904/27/2011Bai Buang A/K/A Michael Xia and Formica Unlimited, Inc.Wage order upheld where employer failed to produce records in response to Demand for Bill of Particulars and was thus precluded from introducing them at hearing; Petitioner's evidence was too general to negate Commissioner's determination of wages owed.
PR1000604/27/2011Mitchell WolffPetition granted striking petitioner's name from the orders where Commissioner failed to file an answer to the petition, thereby waiving her right to further participation in the proceedings. Ref. Rule 65.14 (12 NYCRR 65.14)
PR1017504/27/2011Randall J. FriedmanMotion to dismiss untimely Petition was granted.
PR1017704/27/2011Prakash M. SwamyMotion to dismiss untimely Petition was granted.
PR1019104/27/2011John OdeBoard lacks jurisdiction over petition filed by wage claimant to challenge Commissioner's decision not to pursue claim. Ref.: In the Matter of Toohey, PR 09-223 (January 27, 2010)
PR1028704/27/2011Michael Cipolla and Michael Lutz (D/B/A Five Star Roofing Consultants and Services)Stipulation to withdraw orders against petitioners approved by Board.
PR1029104/27/2011Bradley A. Radwaner and Bradley Arden Radwaner, M.D., P.C.Motion to dismiss untimely Petition was granted.
PR1032704/27/2011Frank MarinoMotion to dismiss untimely Petition was granted.
PR1102304/27/2011Muharrem RraciPetition granted striking petitioner's name from orders.
PES0900404/27/2011Board of Education of the City of Buffalo (Buffalo Public Schools) "Aff'd by Board of Education v Board of Appeals, Sup Ct, Erie County, November 4, 2011, NeMoyer, J., Index No. 2011/2645, appeal pending" Notice of violations issued to Buffalo Public Schools for violating safety standards regarding industrial stairs were upheld.
CI1001704/27/2011Whitestown Police Benevolent Association, Inc.Certification of Incorporation - Approved.
CI1100104/27/2011Village of Florida Police Benevolent Association, Inc.Certification of Incorporation - Approved.
CI1100404/27/2011Working Artists and the Greater Economy, Inc.Certification of Incorporation - Approved.
CI1100504/27/2011Our Own School Bus Union, Inc.Certification of Incorporation - Approved.
CI1100604/27/2011Project S.E.E.Y.M., Inc.Certification of Incorporation - Approved.
CI1100804/27/2011Police Benevolent Association of New York State, Inc.Certification of Incorporation - Approved.
February 2011
Docket Number Date Issued Case Name Summary of Decision
PR0815702/07/2011Maddalone & Associates, Inc. and Maddalone Construction, Inc. (T/A Maddalone & Associates)Maintenance "supervisor" was not exempt from overtime where his primary duty was maintenance and construction and not management; and he was paid hourly. Prior DOL audit indicating that claimant was exempt was not binding.
PR0905802/07/2011Anthony Boumoussa and Bay Parkway Super Clean Car Wash, Inc.Wage Order for failure to pay minimum wages to named and unidentified car wash employees was affirmed as modified. Civil penalty of $271,000 for failure to have payroll records was revoked. Ref.: Reich v Petroleum Sales, Inc., 30 F3d 654 (6th Cir 1994)
PR0906102/07/2011Alysa D. Stukes and Harriet's Alter Ego, Inc.Penalty order against retailer for failure to register as an apparel manufacturer upheld where retailer also embroidered and finished individual garments.
PR0935302/07/2011Joseph Malatesta and LTC Electric Contracting LLC and G M Development Inc. and Allstyne Development LLC (t/A LTC Electric, Inc.)Tenant hired by landlord to perform odd jobs was an employee of the landlord and his wages could not be offset against rent.
PR1005902/07/2011Diana AllahamWage order demanding payment of wages to housekeeper was upheld.
PR1011602/07/2011Katherine O'Brien, Chris Hack and The Spinning Room Bar & Lounge, LLCMotion to dismiss untimely petition granted.
PR1014802/07/2011Doug Quesenberry and Rod Saclolo (T/A Saclolo Wellness)Motion to dismiss untimely petition granted.
PR1021302/07/2011Pritpal S. KochharMotion to dismiss untimely petition granted.
CI1100202/07/2011Grand Union Communication USA, Inc.Certificate of Incorporation - Approved.
December 2010
Docket Number Date Issued Case Name Summary of Decision
PR0808812/15/2010Andrew Kaufman and Global Portfolio Trading, LLCDraw was due to commission salesperson for last three weeks of work even though draw exceeded commissions; but commission received after termination of employment was not due. "Forgivable draw" means that draw is recoverable only against future commissions. Ref: Matter of York Furniture Centers, Inc., Docket No. PR06-081 (August 27, 2009).
PR0903212/15/2010Liza Gattegno and Princess Jessie Rose, Inc. and Jessierose, Inc. (T/A Jessie Rose Boutique)Commissioner's Order for unpaid wages revoked where Petitioner's records, while not compliant with Labor Law, were sufficient to satisfy burden of proof that claimant was properly paid.
PR0909512/15/2010Yung Jin Han T/A Han's Food DeliCommissioner's Order finding that break time of less than 30 minutes must be compensated was reasonable. Ref.: 29 CFR 785.19; Labor Law 652 (1) and (4).
PR0910812/15/2010William M. Capicotto, M.D. and William M. Capicotto, M.D., P.C.Order revoked where Commissioner failed to file an answer to the petition, thereby waiving its right to further participation in the proceedings. Time limit of 30 days to answer begins when the Board serves the Petition on the Commissioner. Ref: Rule 65.14 (12 NYCRR 65.14).
PR0915612/15/2010Christopher Mangold and Mangold Pallet, Inc. (T/A Mangold Group)Orders re civil penalties revoked where Commissioner failed to file an answer to the petition contesting the penalties and Petitioners filed a notarized statement supporting the petition. Ref: Rule 65.14 (12 NYCRR 65.14).
PR1010412/15/2010Michael Wolk and Michael Morrison (T/A Riker Hill Records LLC)Motion to dismiss untimely petition granted. Determination of timeliness of petition is based on Labor Law and Rules governing Board procedures and not CPLR.
PR1024012/15/2010Abe Mendlowitz and Briarcliff Estates, LLCInterim Decision: Employer/landlord may not deduct rent from wages and portions of petition alleging that claimant was paid due to rent deductions are stricken; petition will proceed on civil penalty issue alone. Ref: Labor Law 193; Matter of Angello v. Labor Ready, Inc., 7 NY3d 579 (2006).
CI1001112/15/2010Teacher Union Reform Network, Inc.Certificate of Incorporation - Approved.
CI1001312/15/2010Police Benevolent Association of Watkins Glen, Inc.Amendment to Certificate of Incorporation - Approved.
CI1001612/15/2010Union Gold, Inc.Certificate of Incorporation - Approved.
November 2010
Docket Number Date Issued Case Name Summary of Decision
PR0913211/18/2010Manshui S. Ng and MWL Co., Inc.Motion to dismiss untimely Petition was granted.
PR1009311/18/2010James A. Glennon, Jr. DDSMotion to dismiss untimely Petition was granted.
PR1011011/18/2010Mark Finell, Mark Lamarati, and Craft Marketing, LLCMotion to dismiss untimely Petition was granted.
PR1014511/18/2010Marvin E. MilichInterim Decision: Motion granted to strike allegations of petition relating to collateral estoppel effect of workers' compensation board findings on credibility; Motion for depositions and interrogatories denied.
PR1015011/18/2010Angelo A. Gambino and Francesco A. Gambino (T/A Gambino Meat Market, Inc.)Interim Decision: Motion to dismiss petition as untimely denied where Department of Labor failed to serve petitioners in accordance with Labor Law 33.
CI1001411/18/2010Pacific Union Financial, LLCApplication for a Foreign Limited Liability Company to Conduct Business in New York - Approved.
CI1001511/18/2010Schenectady County Police Conference, Inc.Certification of Dissolution - Approved.
October 2010
Docket Number Date Issued Case Name Summary of Decision
PR0818410/20/2010Carmen Mancheno and Vincent Mancheno and Magic Setting Inc.Diamond setters were employees and not independent contractors and should have been paid for overtime during busy season.
PR0912210/20/2010Michael Montalvo and Montalvo ConstructionMotion to dismiss untimely Petition was granted.
PR0921510/20/2010Jamil Uddin and Jamil MD Uddin and Techno International Corp. (T/A Green Cafe)Reconsideration of dismissal granted and case reopened for Petitioner to file an Amended Petition.
PR0924210/20/2010Antonio J. DeFrancoMotion to dismiss untimely Petition was granted.
PR0933410/20/2010Howard M. Falkow and PMR Enterprises LLCMotion to dismiss untimely Petition was granted.
PR0933610/20/2010J. Paul MacPherson, III A/K/A Paul MacPherson and Plastics Processing, Inc.Motion to dismiss untimely Petition was granted.
PR0938210/20/2010Buenaventura Salazar (T/A Painting and Decorations)Motion to dismiss untimely Petition was granted.
PR1001810/20/2010Martin Goonetilleke A/K/A Shawn Goonetilleke A/K/A Shanthipa Goonetilleke and DVD Depot Inc.Motion to dismiss untimely Petition was granted.
CI1000910/20/2010Pro Union Slate, Inc.Certificate of Incorporation - Approved.
CI1001010/20/2010Great Scott Films, Inc. (Union Square Media)Certificate of Assumed Name - Approved.
CI1001210/20/2010Batavia Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
September 2010
Docket Number Date Issued Case Name Summary of Decision
PR0814109/22/2010Shameem Ahmend Chowdury (T/A New Millenium)Hourly worker hired to perform construction work in building was an employee not an independent contractor; the amount of wages owed was reduced based on testimony.
PR0910509/22/2010Maurice A. Richardson and Roberto A. Bautista and M. Rich, Inc. (T/A Rich Knowledge Institute)Individual who was director of education at school did not meet definition of "employer" under New York Labor Law.
PR1003309/22/2010Master Call Communications, Inc.Motion for reconsideration of decision dismissing petition for failure to amend, denied.
PR1008909/22/2010Lorraine YardeMotion for reconsideration of decision dismissing petition for failure to amend, granted.
PR1015909/22/2010David Allen D/B/A Progressive Technology Systems, Inc.Motion to dismiss untimely Petition was granted.
PES0801109/22/2010City of New York Department of Juvenile Justice (Crossroads Juvenile Center, Horizon Juvenile Center, Bridges Juvenile Center)Citations under Bloodborne Pathogen Standard were reviewed and citations for failure to have knowledgeable trainers and failure to have an updated Exposure Control Plan were affirmed and citations for failure to offer medical follow-up free of charge as well as failure to train in certain areas were revoked.
CI1000809/22/2010Kingston Police Benevolent Association, Inc.Amendment of Certificate of Incorporation - Approved.
July 2010
Docket Number Date Issued Case Name Summary of Decision
PR0807207/28/2010Paul Coppa; Ten's Cabaret, Inc.Petition dismissed where Petitioner failed to satisfy condition of posting a bond for second request for a postponement of the hearing where Petitioner was given notice that there would be no further adjournments.
PR0811307/28/2010Stanley A. Warszycki and Stanley A. Warszcki, Inc.Wage Order affirmed as to wages due where Petitioner lacked required records and his testimony was not credible; civil penalties were reduced to 0 where reasons for penalty were inaccurate and/or not adequately explained.
PR0811707/28/2010National Credit Systems, Inc.Sales reps of debt collection company were employees and not independent contractors; contract terminated where both parties acted as if it had terminated and no commissions were due after termination per contract. Refs: Brock v Superior Care, 840 F2d 1054 (2d Cir 1988); Arbeeny v Kennedy Exec. Search, Inc., 71 AD3d 177 (1st Dept 2010).
PR0816207/28/2010Fast Fresh Food & Gas, Inc.Commissioner's calculation of unpaid wages due three employees was reasonable given lack of required records and supporting testimony of employees; 100% civil penalties reduced to 0 where investigator could not explain factors and file contained three separate findings of 0, 25% and 100%.
PR0903407/28/2010Mohamed OummihReconsideration granted where Petitioner showed that the notice of hearing was sent to an old address and the decision dismissing the petition was for failure to appear at hearing.
PR1005107/28/2010J. Christopher Daly and Sheldrake Organizations, Inc.Motion to dismiss untimely Petition was granted.
CI1000707/28/2010Committee for Transport Workers' Rights, Inc.Certification of Incorporation - Approved.
June 2010
Docket Number Date Issued Case Name Summary of Decision
PR0807606/23/2010Olga Weiss, Iwona Weiss and Color & Cut Beauty Salon, Inc.Recalculated Order affirmed and two individuals held to be liable as employers based on Claimant's specific and credible testimony.
PR0807706/23/2010Sawera Corp. (T/A Subway)Order affirmed but modified where employer did not pay premium rate of time and one-half for overtime hours. Unpaid wage order modified where dates of employment listed in Order were less than those listed in the investigation and therefore, required a reduction in wages due.
PR0905606/23/2010Patricia A. Hommel Cocchia (T/A Patricia A. Coccia, Esq.)Vacation wages due based on Claimant's testimony that there was an agreement for vacation and Claimant had already taken a one week's paid vacation.
PR0919806/23/2010Anthony Villani and Villani's Lawn & Landscape LLC Motion to dismiss untimely petition granted.
PR0925606/23/2010Patrik Hamancin (T/A Patrik Hamancin Construction) Motion to dismiss untimely petition granted.
PR0933206/23/2010Magalie Septimus and Saintilus Day Care Inc. Motion to dismiss untimely petition granted.
PR1003906/23/2010Patricia Dukofsky A/K/A Patricia M. Connolly and Interactive Party.com Inc. (T/A Interactive Entertainment) also (T/A Interactive Entertainment Concepts) Motion to dismiss untimely petition granted.
PES0800606/23/2010Anthony LaPlacaRetaliation complaint remanded to Department of Labor for further investigation.
CI1000306/23/2010Warren County Police Supervisor's Benevolent Association, Inc.Certificate of Incorporation - Approved.
CI1000506/23/2010Advertising Photographers of America, Inc. (American Photographic Artists, Inc.)Application for Name Change - Approved.
CI1000606/23/2010Great Neck Estates Patrolmen's Benevolent Association, Inc. (Great Neck Estates Police Benevolent Association, Inc.)Application for Name Change - Approved.
May 2010
Docket Number Date Issued Case Name Summary of Decision
PR0900905/26/2010Dae Lee and Amen Lee's Corporation (T/A Tip top Car Wash)Order affirmed where petitioner carwash failed to produce adequate records of the daily hours employees worked and DOL's estimate of daily hours worked and wages owed, including "spread shift" pay, was reasonable based on employee statements and the petitioner's own records. Additionally, credible evidence demonstrated that the petitioner's employees did not receive enough in tips or gratuities to qualify for a tip allowance against minimum wage. Refs: 12 NYCRR 142-2.5; 12 NYCRR 142-2.4.
PR0913605/26/2010Heng Zhen Wu and Zhou Fan Liu and 868 Restaurant Corp.Motion to dismiss untimely petition granted.
PR0916405/26/2010Jason Steven Widmer and ITW Industries, Inc. (T/A Getty of Ridge)Motion to dismiss untimely petition granted.
PR0916805/26/2010Awilda Cordero A/K/A Awilda AbreuMotion to dismiss untimely petition granted.
PR0919005/26/2010Steven R. KatzMotion to dismiss untimely Petition was granted.
PR09316i05/26/2010Outstanding Transport, Inc.INTERIM DECISION: Motion to dismiss appeal filed 61 days after issuance of Order denied where Department of Labor put misleading date on notice.
PR0933105/26/2010Rolando Lantigua and El Generalisimo Restaurant, Inc. (T/A Hispaniola Restaurant)Motion to dismiss untimely Petition was granted.
PR0938805/26/2010Leo O'Brien and Leo O'Brien Racing Stable, Ltd..Motion to dismiss untimely Petition was granted.
CI0801705/26/2010Arondizuogu Patriotic Union - USA (APU-USA NY, NJ, and CT), Inc.Application dismissed without prejudice for failure to provide information.
CI0901905/26/2010Union Temporary Services, Inc.Application dismissed without prejudice for failure to provide information.
CI0902705/26/2010Macquesten Union Grove LLCApplication dismissed without prejudice for failure to provide information.
CI1000405/26/2010Hip Hop Summit Youth Council Worldwide Inc.Certificate of Incorporation - Approved.
April 2010
Docket Number Date Issued Case Name Summary of Decision
PR0606904/21/2010Humberto Merchan (D/B/A HA Cutting)Civil Penalty for failure to register as a garment manufacturer was reduced.
PR0804504/21/2010Barbara Purcell and John Purcell and Custom Rescue Vehicles and Equipment, IncCommissions due on sale of ambulances reduced based on facts presented at hearing.
PR0806404/21/2010Mega Sound and Light LLC.Order for unpaid commissions affirmed.
PR0900204/21/2010Alan SavarickIndividual was not an employer where he did not have authority to hire or fire, supervise work schedules or otherwise control the conditions of employment. Ref. Herman v RSR Sec. Services, 172 F3d 132 (2d Cir 1999)
PR0903604/21/2010Mi Jong Li and Emmelle Design Inc.Proceedings discontinued where Petitioner paid penalties.
PR0916904/21/2010Nabil Cheikhali and NM Transportation, Inc. (T/A NM Transportation)Motion to dismiss untimely Petition was granted.
PR0926304/21/2010Patrick L. Reynolds and Patrick L. Reynolds Stable, Inc. (Work Location Belmont Racetrack)Motion to dismiss untimely Petition was granted.
PR0926704/21/2010Ralph D'Alessandro (T/A Ralph D'Alessandro Racing Stable) (Work Location Belmont Racetrack)Motion to dismiss untimely Petition was granted
PR0928304/21/2010Marcia Campbell and Whitewing Real Estate, Inc.Motion to dismiss untimely Petition was granted.
PR0931104/21/2010Jean Suwal and Marrs Electric Sales Co., Inc.Motion to dismiss untimely Petition was granted.
PR09361 PR1001304/21/2010Thomas J. Burns D/B/A T.J. Ferro TruckingMotion to dismiss untimely Petition was granted
PES07012 PES07013 PES0701404/21/2010City of New York Department of Juvenile Justice - Crossroads Juvenile Center, Horizon Juvenile Center, Bridges Juvenile Center "Aff'd by City of New York v Industrial Board of Appeals, 31 Misc 3d 398 (Sup Ct New York County 2011), appeal pending" Citation for violation of the General Duty Clause affirmed where passage of the Workplace Violence Protection Act did not constitute promulgation of a specific standard.
PES0901804/21/2010Lake Mohegan Fire DistrictPetition withdrawn where violations were successfully abated.
CI0902404/21/2010Sino Grand Union Consulting (U.S.A.) Inc.Application dismissed for failure to provide information.
March 2010
Docket Number Date Issued Case Name Summary of Decision
PR0708503/24/2010Shoji Kimura and Asian Products, Inc. and API Technology, Inc.Civil Penalty of 25% of Wages Due was affirmed.
PR0805603/24/2010Jeffrey H. Astor and Jeffco Plumbing, Inc.Motion to dismiss untimely petition granted where affidavit of non-receipt of order was insufficient to rebut presumption of mailing and receipt given evidence of mailing.
PR0805903/24/2010Robert Lovinger and Miriam Lovinger and Edge Solutions, Inc.Individuals were liable for wages as "employers" but civil penalties were revoked where there was no witness to testify as to what factors were taken into account.
PR0807903/24/2010Steve H. Sabba and Taxpro Financial Network Inc.Order affirmed over petitioner's claim that claimant was not employed by him where claimant's testimony was corroborated by earlier admissions by petitioner in emails.
PR0817203/24/2010Dueck Sun Kim Youn D/B/A Momo Despoke Tailor A/K/A Momo Custom TailorEmployer liable for overtime for workers paid by piece-rate and the Department's calculation of hours worked based on the store's operating hours was reasonable where employer failed to keep time records.
PR09001r03/24/2010Samuel Parada, Sr. and Superior Car Wash and Accessories, Inc. (T/A Samuel's Car Wash)Board Decision issued to correct Board's use of incorrect rate of pay in Decision issued in January 2010.
PR0901403/24/2010Helen Sieger and Kingsbridge Heights Care Center, Inc. (T/A Kingsbridge Heights Rehabilitation and Care Center)Petition withdrawn where Order paid in full.
PR0918903/24/2010Zych Enterprises, Inc.Motion for Reconsideration of October 2009 Board decision dismissing petition granted and case reinstated.
PES0900203/24/2010Paul DankoCase alleging retaliation for health and safety complaint was remanded for further investigation.
PES1000103/24/2010District Council 37, AFSCMEDepartment of Labor decision to grant petition to modify abatement date to postpone abatement date 60 days affirmed.
CI0903303/24/2010Local Union 45, U.B.C. and J.A. Scholarship FundApplication for Name Change - Approved.
CI100203/24/2010Ijero Progressive Union, New York ChapterApplication for Name Change - Approved.
January 2010
Docket Number Date Issued Case Name Summary of Decision
PR0815801/27/2010Robert H. Minkel and Millwork Distributors, Inc.Individual corporate owner was liable for unpaid wages as "employer" where he hired and supervised the employees, controlled payroll and maintained employment records. Ref. Herman v. RSR Sec. Servs. Ltd, 172 F3d 139 (2d Cir 1999)
PR0900101/27/2010Samuel Parada, Sr. and Superior Car Wash and Accessories, Inc. (T/A Samuel's Car Wash)Order for payment of minimum wages to car wash workers affirmed but modified where employees testified to a different period of employment than was on the audit; Commissioner may not amend order after hearing record is closed
PR0902401/27/2010Nathan Godfrey (T/A A.S.U.)Order for vacation pay affirmed. Ref. Labor Law 198-c.
PR0909201/27/2010Valentin Voynoroskii and Rostov Auto Express, Inc. and Bukovina Express, Inc.Petition dismissed as untimely.
PR0912401/27/2010Sterling Rex Peters (T/A Rex Peters Roofing)Petition dismissed as untimely.
PR0922301/27/2010Phyllis TooheyBoard lacks jurisdiction over petition filed by wage claimant to challenge Commissioner's withdrawal of an Order.
PR0923601/27/2010Jamie DesormeauxPetition dismissed as untimely
CI0902101/27/2010Central Labor Rehabilitation Council of New York, Inc.Certificate of Dissolution - Approved.
CI0903201/27/2010Schuyler County Road Patrol Assn., Inc.Certificate of Incorporation - Approved.
December 2009
Docket Number Date Issued Case Name Summary of Decision
PR0811112/14/2009Pamela BlumBabysitter was employee where she worked in excess of 20 hours per week on a regular basis; however, no wages were due and issue of withholding was for the IRS and not the Board.
PR0812812/14/2009Akiva Emergi and Eyal Ovadia and HOD Construction Corp. and Super Homes, Inc. d/b/a Superior Homes "Rev'd by Ovadia v Industrial Board of Appeals, 2012 NY Slip Opinion 3358 (Court of Appeals May 1, 2012)"General contractor on private construction project found liable as an employer under Article 6 of the Labor Law for unpaid wages to subcontractor's employees where the employees used the general contractor's premises and materials to complete a discrete line job essential to the general contractor's process of construction, and the employees worked exclusively for the general contractor. Refs: 29 CFR 791.2; Rutherford Food Corp. v McComb, 331 US 722 [1947]; Zheng v Liberty Apparel Co., Inc., 355 F3d 61 [2d Cir 2003]
PR0907612/14/2009Jay Nordin and Xtreme Home Design Inc.Motion to dismiss untimely Petition granted.
PR0909412/14/2009Gregory Lorenzo and Lorenzo Holding Corp. (T/A Rocket Express Delivery)Motion to dismiss untimely Petition granted.
CI0903012/14/2009Cigaldi Corp.Certification of Assumed Name - Approved.
CI0903112/14/2009Putnam County Sheriff's Department Police Benevolent Assn., Inc.Certification of Incorporation - Approved.
November 2009
Docket Number Date Issued Case Name Summary of Decision
PR0800511/17/2009Abdul Wahid and Aniqa Halal Poultry Corp.Order against chicken poultry market for unpaid wages and overtime based on employee interviews affirmed but modified. Liquidated damages affirmed. Ref. Mid-Hudson Pam Corp v. Hartnett, 156 AD2d 818. Labor Law 196-1, 663.
PR0811511/17/2009Sam HoffmanLiability of individual who owned 50% of corporation affirmed but civil penalties revoked where there was no testimony how statutory factors were applied. Ref.: Herman v RSR Security Services Ltd., 172 F3d 132 (2d Cir 1999); Labor Law 218.
PR0816011/17/2009Sanford J. Mohel and Walsh Limousine Service, Inc.Drivers of Limousine Service were employees and not independent contractors and wages and expense reimbursements were due.
PR0901911/17/2009The Abate, Inc. (T/A Elda's on Lark)Motion to dismiss untimely Petition granted. Ref.: Labor Law 101
PR0914511/17/2009Joseph Miele and Miele Sanitation Co. NY, Inc.Motion to dismiss untimely Petition granted.
CI0902111/17/2009Central Labor Rehabilitation Council, Inc.Certificate of Dissolution of Corporation - Approved.
CI0902211/17/2009Capital District Sheet Metal, Roofing and Air Conditioning ContractorsApplication for Name Change - Approved.
CI0902611/17/2009Crunch Union Square, LLCCertification of Incorporation - Approved.
CI0902911/17/2009New Paltz Police Association, Inc.Certification of Incorporation - Approved.
October 2009
Docket Number Date Issued Case Name Summary of Decision
PR0808910/21/2009Rocky NapoliOrder modified to reflect evidence presented at hearing concerning dates of employment; individual found to be an employer under Hermann v. RSR Sec. Servs. Ltd., 172F3d 132 (2d Cir 1999)
PR0809810/21/2009Abdul A. SaadatLivery driver who drove one of the vans leased by Petitioner from livery company was not an independent contractor; Petitioner was an employer and liable for illegal deductions for workers' compensation insurance and uniform.
PR0810710/21/2009Jeanette Fenti and Creative Think Tank Agency, Inc."Freelance" graphic designer who worked for one day was employee of advertising agency and not an independent contractor Ref. Brock v Superior Care, Inc., 840 F2d 1054 (2d Cir 1988).
PR0817010/21/2009Gregory G. Kerber and Wurld Media, Inc.INTERIM DECISION: Bankruptcy proceeding does not stay Board proceeding. Ref. In Re Jerome Pollock, Jr. Stone Artist, Inc., 402 BR 534 (Bktrcy NDNY 2009)
PR0908510/21/2009Alemnesh Mengesha D/B/A MJM Mini MarketPetition dismissed as untimely. Five additional days are not added for mailing of Order. Ref. Matter of Business Credit Corp., PR08061 (December 17, 2008).
PR0912510/21/2009Steven Sisskind, Abraham Wiesel and The Morgan Mint, Inc. (T/A Volpone Stamp Co., Inc.)Petition dismissed as untimely.
PR0913710/21/2009Renauld A. Gregg and Andrea Gregg and RAG Development Group Corp.INTERIM: Motion for Reconsideration granted and Board's decision of August 27, 2009 is revoked.
PR0917910/21/2009Joseph WilliamsPetition granted and Petitioner's name removed from Order.
PR0923110/21/2009David S. Erway, Jr. D/B/A Erway's Landscaping and Pond DesignPetition dismissed as untimely. Five additional days are not added for mailing of Order. Ref. Matter of Business Credit Corp., PR08061 (December 17, 2008).
CI0902010/21/2009Rome Professional Fire Chief's Association, Inc.Certificate of Incorporation - Approved.
CI0902310/21/2009Union Ocean Shipping LimitedApplication for Authority to Do Business in New York State - Approved.
CI0902510/21/2009Local 259 UAW Building CorporationCertificate of Incorporation - Approved.
CI0902810/21/2009Association of Locations ProfessionalsCertificate of Incorporation - Approved.
August 2009
Docket Number Date Issued Case Name Summary of Decision
PR0608108/27/2009York Furniture Centers, Inc. D/B/A York Furniture GalleryOrder affirmed but modified. Absent agreement to the contrary, draws against commission are only recoverable against future earned commissions and set the employee's minimum compensation. Salary advances and purchases could not be deducted from unpaid wages. Employer may not reduce salary without advance notice. Refs. Labor Law 193; In re Sherman, 627 F2d 594 (2nd Cir 1980); Royal Distributors Co. v Friedman, 141 NYS2d 786 (1985); Wolfsheimer v Frankel, 115 NYS 958 (1909).
PR0706208/27/2009Ricardo J. Ahrens (T/A Ahrens Construction)Order affirmed where employer failed to meet burden to establish that employee was an independent contractor or that, in the absence of records, wages were not due.
PR09025i08/27/2009Alan Goldschlager and Broadway 159 Wine and Spirits Inc.INTERIM: Commissioner's motion to dismiss Petition is denied without prejudice and Petitioner is instructed to file an Amended Petition.
PR09058i SA0900108/27/2009Anthony Boumoussa and Bay Parkway Super Clean Car Wash, Inc.INTERIM: Board is not authorized to grant stay of entry of judgment on order to comply where Commissioner may not enter judgment during pendency of appeal of order. Refs.: Labor Law 218, 219, 657, 658.
PR0914108/27/2009Penny Roberts and Edwin Rosario and Regina Check Cashing Corp. (T/A Regina Check Cashing and Financial Services)Petition dismissed as untimely.
July 2009
Docket Number Date Issued Case Name Summary of Decision
PR0809007/22/2009Van Patten Enterprises, Inc. (T/A Kirby Vacuum)Orders affirmed. Dealers who sold vacuum cleaners door to door were employees of the petitioner, not independent contractors, because the petitioner exercised sufficient control over the dealers' conditions of work. Additionally, the time that the dealers spent in orientation and training prior to engaging in any outside sales is compensable time not subject to the outside sales exemption. However, the amount of the wages due for training time must be modified where evidence showed that the dealers attended an average of 9 hours of unpaid orientation and training, not 24 hours as determined by DOL. Refs: Brock v Superior Care Inc., 840 F 2d 1054, 1059 [2d Cir 1988]; 12 NYCRR 142-2.14 [c] [5].
PR0814807/22/2009Philip Berwald and the Mortgage Bankers Corp. (T/A Mortgage Bankers)Petitioner dismissed where parties notified the Board that the case had settled.
PR0817607/22/2009Michael Moonan and Donna Milcetic and Garden City Maintenance, Inc.Petitioner landscape and garden company failed to prove that claimant did not work two days where claimant testified as to days and hours and Petitioner's records were incomplete and contradictory. Ref. Ref. Angello v. Natl. Finance Corp., 1 AD3d 850 (3d Dept 2003).
PR0906307/22/2009Donny Graber and Internet Telephone Provider, Inc. (T/A ITP, Inc.)Petition dismissed as untimely.
CI0802407/22/2009Liberty Policemen's Benevolent Association, Inc.Application for Approval of Certificate of Incorporation dismissed for failure to file necessary information.
CI0900207/22/2009Unioncare, LLCApplication for Approval of Certificate of Incorporation dismissed for failure to file necessary information.
CI0901407/22/2009Bethlehem Police Supervisor's Association, Inc.Certificate of Incorporation - Approved.
CI0901507/22/2009National Labor Alliance of Health Care Coalitions, Inc.Amendment to Certificate of Incorporation - Approved.
CI0901607/22/2009Town of Lewisboro Municipal Employees Association, Inc.Certificate of Incorporation - Approved.
CI0901707/22/2009Great Neck Buildings and Grounds Supervisors Association Inc.Certificate of Incorporation - Approved.
CI0901807/22/2009EKRA Ltd.Certificate of Incorporation - Approved.
June 2009
Docket Number Date Issued Case Name Summary of Decision
PR0710406/18/2009Rick Mercendetti and Rainmaster Irrigation Systems, LLPWage Order affirmed where Petitioner attempted to lower the agreed rate of pay retroactively; Penalty Order revoked where Petitioner provided evidence of keeping payroll records and Commissioner failed to show that records were requested and not furnished.
PR0804306/18/2009Michelle Mosher (D/B/A Personal Touch Cleaning Service)Petitioner failed to meet burden of proving that Order was unreasonable or invalid where Petitioner's statements on rate of pay and days worked were inconsistent and not credible.
PR0806706/18/2009Paul Flanagan and Flanagan Design and Display Inc.Wage Order affirmed where Petitioner's argument that Claimant was not entitled to three weeks' wages due to poor performance is not a valid defense.Ref. Guepet v Intl. TAO Sys., Inc., 110 Misc2d 940 (Sup Ct Nassau County 1981)
PR0809306/18/2009Four J's Sportswear Inc.Penalty Order for failure to maintain and furnish payroll records affirmed where Petitioner only had records for two of its six employees.
PR09003i06/18/2009William Mark Dictor and Hanlon Auto Transport Inc.INTERIM: Commissioner's motion to strike certain paragraphs of the petition granted in part, where those paragraphs demonstrated practices that are unlawful deductions from employee wages as a matter of law in violation of Labor Law ss. 193. Specifically, deductions from employee wages for damage or potential damage to the employer's property, withholding wages to penalize an employee for alleged misconduct, and charging a fee to employees who opt for direct deposit of their wages, are violations of Labor Law ss. 193.
PR0902706/18/2009Helen Edgington and The Spencer Hotel, Inc.Petition dismissed as untimely.
PR0905906/18/2009Jason Witover and 5 Star Home Improvement Inc. (T/A Green Machine Lawn Maintenance Inc.Petition dismissed as untimely.
CI0901306/18/2009Greece Uniformed Fire Officers Association, Local 4640, IAFF, ALF-CIO, Inc.Certificate of Incorporation - Approved.
May 2009
Docket Number Date Issued Case Name Summary of Decision
PR0609205/20/2009Hand Held Films, Inc.Complainant was due overtime where Petitioner failed to meet its burden that Complainant camera technician was an exempt management employee; calculation of unpaid overtime wages due based on employee estimate was reasonable where employer failed to have records.
PR0709305/20/2009Mohammed Aldeen and Island Farm Meat Corp. (T/A Al-Noor Live Poultry) "Aff'd by Aldeen v Industrial Board of Appeals, 82AD3d 1220 (2d Dept 2011)"Order to pay unpaid wages was reasonable even though it was based on employee interviews where employer failed to have records and employee testimony at the hearing was not credible or sufficiently specific to meet employer's burden to prove that the order was invalid or unreasonable. Ref.: Mid-Hudson Pam Corp. v. Hartnett, 156 AD2d 818 (3d Dept 1989); Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1949).
PR0809405/20/2009Alon Hen and Integrity Collision and Towing Inc.Order affirmed. Commissioner's order finding petitioner towing company was the employer of claimant tow truck driver was reasonable where there was no evidence that the claimant operated his own company, and where the evidence showed that petitioner exercised control over the claimant by determining work schedule and rate of compensation, dispatching service calls to the claimant and providing him with equipment needed to perform the work. Refs: Labor Law 190; Labor Law 191; Brock v. Superior Care, Inc., 840 F2d 1054 (2d Cir 1988).
PR0816705/20/2009Louis Cacace and SV Video Service, Inc.Petition dismissed as untimely.
PES0700805/20/2009Mateusz J. NadoleckiDetermination affirmed. Petitioner failed to meet his burden to prove that a determination of the Commissioner to take no further action on his discrimination complaint under the Public Employee Safety and Health Act (PESHA) was unreasonable or invalid where the evidence demonstrated that the Department of Labor's investigation of the Petitioner's claim was reasonable. The Board's role was not to determine whether the Petitioner was discriminated against, but whether the Commissioner's determination that he was not discriminated against was reasonable. That the record contained some evidence which may give rise to another conclusion is not sufficient to find that the determination was unreasonable. Refs: Labor Law 27-a (10) (a); Matter of Brian Colella, Docket No. PES 04-004 (August 22, 2007); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Dept of Correctional Services v. Division of Human Rights, 238 AD2d 704 (3d Dept. 1997).
CI0900905/20/2009West Islip Secretarial Employees, Inc.Certificate of Incorporation - Approved.
CI0901005/20/2009Union Land, Inc.Application of Foreign Corporation for authority to do business in New York - Approved.
CI0901105/20/2009International Trade Union Confederation Ltd.Certificate of Incorporation - Approved.
CI0901205/20/2009United Federation of Retail and Wholesale Workers of America, Inc.Certificate of Incorporation - Approved.
April 2009
Docket Number Date Issued Case Name Summary of Decision
PR08014i04/22/2009Akber H. Hassam (T/A Dr. Akber H. Hassam, M.D.)INTERIM: Motion to dismiss petition as untimely denied where Board ordered Petitioner to file an amended petition to clarify issues after 60 day appeal period expired but original letter of appeal was timely. Board had discretion to allow late filing of Amended Petition where no prejudice was shown.
CI0900304/22/2009Union of Progressive Zionists/ J Street Education Fund, Inc.Application to Change Corporate Name - Approved.
CI0900404/22/2009Social Workers Association Corp.Certificate of Incorporation - Approved.
CI0900504/22/2009V.J.R. Management Corporation of America/ Union Transportation ServicesCertificate of Assumed Name - Disapproved.
CI0900704/22/2009Union Labor Health Care Coalition, Inc./ National Labor Alliance of Health Care Coalitions, Inc.Proposed Name Change - Approved.
CI0900804/22/2009Brooklyn Van Industry Association Inc.Certificate of Incorporation - Approved.
March 2009
Docket Number Date Issued Case Name Summary of Decision
PR0606703/25/2009La Simpatia Supermarket Corp.Order to pay wages affirmed where Petitioner presented no evidence at hearing other than verified petition.
PR0802103/25/2009Ramon Gonzales and Ramon Rodriguez and 261A Nassau Grocery Corp.Order to pay wages to two employees affirmed but modified to eliminate liability of one individual employer for first claimant's wages where individual was not associated with the business when first claimant was employed.
PR0805503/25/2009Marc Hochlerin and Ace Audio Video Inc. (T/A Ace Audio-Visual Co. and Ace Communication)Order for payment of vacation and sick pay affirmed where employer failed to provide records or produce evidence that vacation or sick pay had been taken but the order was modified to reflect a reduced base rate of pay; civil penalties reduced.
PR08072i03/25/2009Paul Coppa and/or Ten's Cabaret Inc.INTERIM: Commissioner's Motion to Dismiss Petitions as untimely denied where Order was not served on attorneys for employer as required by Executive Law 168 since the attorneys filed a notice of appearance with the Department of Labor after which all communications, except the Order, were solely with the attorneys.
PR0808503/25/2009Kimberly KnitsPetition dismissed as untimely.
PR08086i03/25/2009Goy Lovell and Orin Lovell and Charisma Travel Inc.INTERIM: Commissioner's Motion to Dismiss Petition partially granted since allegation that one of the employees due wages is in the United States illegally and provided false documentation is not a defense to claim for unpaid wages.
PR0813203/25/2009Susan Walsh (T/A Hart Salon and T/A Hart and Company Salon and Day Spa)Petition dismissed as untimely.
PR0813403/25/2009Laszlo Keszthelyi and Igor Construction Corp.Petition dismissed as untimely.
PR0815403/25/2009Dennis Dumbleton and Dumbleton Used Auto Parts, Inc. (T/A Dumbleton Used Auto Parts)Petition dismissed as untimely.
PES08003i03/25/2009July 4 Ever Inc. and Vincent EspositoDetermination's finding that fireworks within a box truck were not in transit, but were improperly stored is sustained; findings that Petitioners misrepresented on explosives license renewals that they did not have employees and on permits for display fireworks that they had certain insurance were vacated as not supported by substantial evidence or law. Order modified by substituting the penalty of suspension for the penalty of revocation of explosives license and explosives magazine certificates. Revocation was determined to be unreasonably harsh.
CI0900303/25/2009The Union of Progressive Zionists (J Street Education Fund)Application to Change Corporate Name - Approved.
CI0900603/25/2009Apu USA, Inc. (Arondizuogu Patriotic Union, NY, NJ, CT)Certificate of Incorporation - Approved.
January 2009
Docket Number Date Issued Case Name Summary of Decision
PR0708401/28/2009Crystal DeLorenzo dba Wade Travel AgencyOrder modified to change name of employer; order to pay commissions affirmed but civil penalty reduced.
PR0800901/28/2009Hakman Choi and Soon Cheol and Joyco USA Ltd.Order to pay wages affirmed in part based on employer's inability to overcome burden of proof and modified in part based on credibility determination. Ref. Angello v. Nat'l Fin. Corp., 1 AD3d 850 (3d Dept 2003).
PR0813501/28/2009Joseph P. Doyen and Darsi L. Doyen dba Darsi's (T/A Darsi's Grape Country Kitchen)Petition dismissed as untimely.
PR0816101/28/2009Hye Ran Park and Chan Hyuk Park and Tae-Ok Park and Shin Po USA Corp.Petition dismissed as untimely.
PR0817301/28/2009Ramjit Hermraj and Elite Accounting Services, Inc.Petition dismissed as untimely.
PES0701101/28/2009Mateus NadoleckiWithdrawal of Petition approved.
CI0802701/28/2009Coney Island Council for Service for the Aged, Inc.Certificate of Incorporation - Approved.
December 2008
Docket Number Date Issued Case Name Summary of Decision
PR0606812/17/2008Frank R. Kline, Nicholas C. Memmo, Klaus Koch, Stephen D. Weinroth and Joseph FergusonOrders to pay wages modified to remove names of individual petitioners where sole theory of liability was based on shareholder liability under Business Corporations Law 630.
PR0709212/17/2008David Shehadeh and 4121 Church Meat Corp. (T/A Associated Supermarket)Order imposing $500 penalty for failure to register as apparel contractor upheld where Petitioner failed to provide all necessary documentation supporting registration application and registration was never issued.
PR0802512/17/2008Ira Holm and RSI, Inc. and RISC Midland Ave. Corp.Order against individual Petitioner upheld where he hired, trained, supervised and controlled the employee as well as signed her paycheck. Ref. Herman v. RSR Sec. Servs. Ltd., 172 F3d 132, 139 (2d Cir 1999)
PR0806112/17/2008Norman Carnoil and Business Credit Corp.Petition dismissed as untimely where it was not filed within 60 days of issuance of the Order. There is no provision for adding 5 days to limitations period where Order is served by mail. Ref. Board Rule 65.3.
PR08078i12/17/2008RAM Hotels, Inc. (T/A Rodeway Inn)INTERIM: Petition for reconsideration granted where Petition had been dismissed for failure to file an amended Petition where supporting affidavit alleged failure to received Board's request for an amended Petition and past conduct indicated that Petitioner would not have ignored Board's request if it had received it.
PES0600412/17/2008NYC Department of Transportation (5 Dubois Avenue, Staten Island, NY)PESH Citations for failure to comply with Part VI of the Manual on Uniform Traffic Control Devices (MUTCD) during road repair were revoked where DOL failed to specify with particularity the standards it alleged were violated. Citations may only be issued for violations of MUTCD Standards and not Guidance Statements. Ref; Labor Law 27-a (6) (a).
November 2008
Docket Number Date Issued Case Name Summary of Decision
PR0608611/19/2008My Service Center, Inc.Orders upheld finding that Petitioner made illegal deductions from an employee's wages in violation of Labor Law 193, failed to pay overtime in violation of Article 19 of the Labor Law, and did not keep required records in violation of Labor Law 661. Employee's primary duty was not management and therefore he was not a bona fide executive exempt from overtime. It was unlawful deduction from wages in violation of Labor Law 193 for Petitioner to deduct the cost to repair vehicles damaged by the employee from the employee's wages. Refs: 12 NYCRR 132-2.14 (c); Labor Law 193; Wetzel Services v. Industrial Board of Appeals, 252 AD2d 312 (3d Dep't 1998); Donovan v. Burger King Corp., 675 F2d 516 (2d Cir. 1982); Matter of Claim of La France, 173 AD2d 989 (2d Dept. 1991).
PR0812911/19/2008Sulakhan Singh and Earth Development and Construction Group, Inc.Petition dismissed as untimely.
CI0800211/19/2008Heritage Union Services, LLCProceeding discontinued for failure to file necessary paperwork.
CI0802311/19/2008Associate Musicians Metropolitan Opera Inc.Certificate of Incorporation - Approved.
CI0802511/19/2008Crew Cuts Sound, Inc. (Sonic Union, Inc.)Certificate of Incorporation - Approved.
October 2008
Docket Number Date Issued Case Name Summary of Decision
PR0710310/22/2008Nathan Rosenblatt and Ashland Maintenance Corp. (T/A Ashar Cleaning Corp.)INTERIM: Commissioner's motion to dismiss Petition denied. Pleadings must be liberally construed and defects ignored in the absence of prejudice to the non-moving party. The Petition sufficiently notified the Commissioner that the Petitioners denied owing wages and contested individual liability. Petitioners are directed to file an Amended Petition conforming with 12 NYCRR 66.3. Refs: Estate of Unterweiser v. Town of HempsteadI, 235 AD2d 453 (2d Dept. 1997); Bernberg v. Health Management Systems, Inc., 303 AD2d 348 (2d Dept. 2003); 12 NYCRR 66.3.
PR0802010/22/2008Kamran Malekan and Il Prezzemolo, Inc. (T/A Joe's Pizza)Order modified. Petitioners partially met their burden of proof by demonstrating that Claimant worked less hours than set forth in Order; however, Petitioner still owed overtime wages to Claimant who worked over 40 hours per week and was paid by weekly salary. Refs: 12 NYCRR 137-1.3; 12 NYCRR 137-3.5.
PES0700410/22/2008New York State Thruway Authority/New York State Canal Corp.INTERIM: Petitioner's motion to set aside Commissioner's Order on the grounds that Petitioner was denied the opportunity for a Board hearing within a reasonable time denied where Petitioner failed to establish substantial prejudice where delay in responding to subpoenas and discovery demands and confusion as to notice of violations was correctable. Commissioner ordered to produce further documents, responses and privilege logs in response to Petitioner's discovery demands. In camera inspection of privileged documents ordered. Petitioner given right to renew its objection that it had inadequate notice of certain violations that Petitioner asserts were unrelated to the standard for which it obtained a variance and the conditions imposed by the variance. Board orders striking of multiple violations issued for the same hazardous condition.
CI0802010/22/2008Village of Cold Spring Police Benevolent Assn., Inc.Certificate of Incorporation - Approved.
CI0802110/22/2008A.T. West 16th Enterprises, Ltd. D/B/A Union PrimeCertificate of Assumed Name - Approved.
CI0802210/22/2008Eastchester Professional Firefighters Local 916, Inc.Certificate of Incorporation - Approved.
September 2008
Docket Number Date Issued Case Name Summary of Decision
PR0607309/24/2008Angela Jay Masonry and Concrete, Inc.Unpaid wage Order upheld where employer failed to keep required records and evidence produced at hearing of hours worked by employee was incomplete, general and conclusory; DOL properly relied on employee complaints in determining wages owed per Labor Law 196-a and investigation was not insufficient. Ref. Angello v. National Finance Corp., 1 AD3d 850 (3d Dept 2003)
PR0703509/24/2008Gary Yorke and/or Pristine Plumbing and Heating, Inc.Complainant was not a bona fide executive or a partner and therefore entitled to file an unpaid wage claim with the Commissioner pursuant to Article 6. Discussion of factors used in determining bona fide executive. Ref. Pachter v. Bernard Hodes Group, Inc., 10 NY3d 609 (2008).
PR0704109/24/2008Uncle Sam's House, Inc.Order affirmed. Petitioner produced no evidence that it was an approved rehabilitation program under 12 NYCRR 142-2.13. Therefore, deductions taken by the Petitioner from program participants' wages for program fees, transportation costs, and key deposits are unlawful deductions from wages under Labor Law 193. Additionally, Petitioner did not meet its burden to show that it did not owe wages to one named employee. Refs: Labor Law 193; Labor Law 190 (3); Labor Law 651 (6).
PR0801609/24/2008Motion to dismiss Petition as untimely granted.Motion to dismiss Petition as untimely granted.
PR0802209/24/2008Borough Park Food Mart, LLCINTERIM: Motion to dismiss Petition as untimely was denied where the initial Petition was filed within 60 days of the Order and later clarified by amendment per Board Rule 65.13. Ref. Angello v. National Finance Corp., 1 AD3d 850 (3d Dept 2003).
PR0802609/24/2008Foster Properties, LLC (T/A Maggie's Pub)INTERIM: Motion to dismiss Petition as untimely was denied where the initial Petition was filed within 60 days of the Order and later clarified by amendment per Board Rule 65.13. Although amendment was beyond due date, Board has discretion to allow late amendment where there is no prejudice. Ref. Angello v. National Finance Corp., 1 AD3d 850 (3d Dept 2003).
PES08003 (SA08002)09/24/2008July 4 Ever, Inc. and Vincent EspositoINTERIM: Petitioner's Stay Application denied.
CI0801409/24/2008Marlborough Town Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
CI0801509/24/2008NYS Courts Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
CI0801609/24/2008Teachers for a Just ContractCertificate of Incorporation - Approved.
CI0801809/24/2008Clinton County Deputy Sheriff's Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
CI0801909/24/2008Bricklayers and Allied Craftworkers Local 5 Realty CorporationCertificate of Incorporation - Approved.
CI0801909/24/2008Bricklayers and Allied Craftworkers Local 5 Realty CorporationCertificate of Incorporation - Approved.
July 2008
Docket Number Date Issued Case Name Summary of Decision
PR 07-01907/30/2008Franbilt, Inc. and/or Thomas J. Barnes, and/or Michael J. BurnsThe owner and sole shareholder of a fabrication and machine company is an employer where he has hiring authority (even if unexercised), and oversight of decisions such as pay rate. The former CFO (with no ownership interest) of the same company is not an employer when he had no authority or control during the time period in question. Refs., Chu Chung v. The New Silver Palace Rest., Inc., 272 F Supp 2d 314; Herman v. RSR Sec. Servs. Ltd., 172 F3d 132 (2d Cir 199)
PR 07-02207/30/2008Apple Sports Wear, Inc.Order against apparel retailer modified where credible proof at hearing reduced hours worked by Complainant
PR 07-09707/30/2008Bella Krementsova and Polishmaid, Inc.Order against maid service for unpaid wages upheld where Petitioner failed to keep required records or show proof of payment to employee. Refs., Angello v. Natl. Fin. Corp., 1 AD 3d 850 [3d Dept 2003]; Matter of Mid Hudson Pam Corp. v. Hartnett, 156 AD 2d 818 (3d Dept 1989); Maggione v. Bero Constr. Corp., 106 Misc 2d 384 (Sup. Ct. Seneca County 1980)
PR 08-02307/30/2008Diharam Singh and Efficient Auto Collision Repair, Inc.Petition dismissed as untimely.
PR 08-03507/30/2008Carlo Lauro and Arrowhead Pond Farm, Inc. (T/A Animales and Aves De Granja)Petition dismissed as untimely.
CI 08-01307/30/2008La Union, Inc.Certificate of Incorporation - Disapproved.
June 2008
Docket Number Date Issued Case Name Summary of Decision
PR0602706/25/2008Urban Renewal Committee of South Jamaica, Inc.Order for payment of wages against non-profit corporation was modified to the extent that the employer was able to establish that part of the employee's claim was paid but otherwise upheld where employer's records were inadequate because work packing up business was compensable although such work was not within the employee's normal duties.
PR0604806/25/2008Leah Wilen and Darren WilenOrder for payment of wages to domestic worker was upheld but modified where employers credibly testified that employee worked 5 days instead of 6, despite lack of records.
PR0704706/25/2008David Schlockman and/or Mitchell Zimmerman and/or D.A.M. Clothing, Inc.Three wage and wage supplement Orders affirmed directing payment of over $45,000 in unpaid salaries, commissions and expenses owed to 5 employees. Having failed to produce accurate records, the Commissioner's calculation of the wages must be credited unless Petitioner proves that the employees were paid the disputed amounts. Petitioner's evidence on the sole issue at hearing - the accuracy of DOL's calculations of wages owed - was too general and conclusory to shift such burden. Ref. Angello v. National Finance Corp., 1 AD3d 850 [3d Dept. 2003];Matter of Mid-Hudson Pam Corp. v. Hartnett, 156 AD2d 818, 821 [3d Dept. 1989].
May 2008
Docket Number Date Issued Case Name Summary of Decision
PR0700205/28/2008Josef Mendlovic T/A United Hudson Management Co.Building superintendent was employee of property management company where he was hired by the company and performed services for it.
PR0709405/28/2008Clarence CarnahanPetition dismissed for failure to provide copy of Order of the Labor Commissioner or contact information.
PR0709905/28/2008Sokana Corp. (T/A Manny's Steakhouse and Seafood)Petition dismissed pursuant to Labor Law 101 for failure to file within 60 days of issuance of the Order
PES0701005/28/2008Corrie BermanPetition dismissed where Petitioner failed to respond to Board inquiry concerning its withdrawal of complaint.
CI0800705/28/2008Town of Mount Hope PBA, Inc.Certificate of Incorporation - Approved
CI0800905/28/2008Ramapo Police Superior Officer's Association, Inc.Certificate of Incorporation - Approved
CI0801005/28/2008Union Payroll AgencyCertificate of Incorporation - Disapproved
April 2008
Docket Number Date Issued Case Name Summary of Decision
PR 05-06804/23/2008238 Food Corp. (d/b/a Riverdale Diner)Order upheld where restaurant industry employee, although he was given the title of "chef", was not exempt from overtime requirements because his primary duty was to cook, not to supervise other employees; he did not customarily and regularly direct the work of two or more other employees; he did not have the authority to hire and fire; and he did not customarily and regularly exercise discretionary powers as evidenced by his lack of input into the creation of the menu. Additionally, the Board found it reasonable for the Commissioner to collect unpaid wages for a period six years prior to the date the claimant filed a complaint with the Department of Labor. Refs: 12 NYCRR 137-1.3; 12 NYCRR 137-2.2; 29 C.F.R. 541.202 (b); Matter of Mid-Hudson Pam-Corp. v. Hartnett, 156 AD2d 818 (3d Dept 1989); Giles v. City of New York, 41 F.Supp.2d 308 (SDNY 1999);Labor Law 663 (3); Labor Law 196 (1) (a); 12 NYCRR 137-2.1 (a).
PR 06-05304/23/2008Business Computer Answers, Inc.Terms of the contract between Petitioner and Complainant governed the payment of commission-bonuses, and absent an agreement to the contrary, commissions are not forfeited by an employee's discharge or resignation. It is an unlawful deduction from wages to garnish an employee's wages to recover overpaid commissions. Order modified from $27,132.05 in unpaid commission-bonuses to $6,128.25 because record supported the lesser amount, and imposition of a civil penalty was unreasonable in this case because there was no evidence that the violation was willful or egregious. Ref., Labor Law 191; Labor Law 193; Hall v. United Parcel Service, 76 NY2d 27, 37 [1990]; Reilly v. Natwest Markets Group, Inc. 181 F.3d 253, 265 [2d Cir. 1999]; Genes v. Yellow Book of New York, 23 AD3d 520, 521 [2d Dep't 2005]; Edlitz v. Nipkow and Kobelt, Inc., 264 AD2d 437 [2d Dep't 1999]; Gebhardt v. Time Warner Entertainment-Advance/Newhouse, 284 AD2d 978, 979 [4th Dep't 2001]; Matter of First Coinvestors, Inc. v. Carr, 159 AD2d 209 [1st Dep't 1990]; Jacobson v. Sassower, 66 NY2d 991, 993 [1985]; Mirchel v. RMJ Securities Corp., 205 AD2d 388, 390 [1st Dep't 1994].
PR 06-05704/23/2008Smarty of New York, Inc.Penalty for failure to register upheld where "cutting" is within definition of apparel manufacturing. Labor Law 340.
PR 06-09904/23/2008Michael E. Fischer (D/B/A MEFCO Builders)Unpaid wage Order against construction contractor upheld where employer's evidence of hours worked by employee was too incomplete, general and conclusory in light of its failure to keep records. Ref. Angello v. National Finance Corp., 1 AD3d 850 (3d Dept 2003)
PR 07-01404/23/2008Floral Park Community ChurchInterim pastor of church was due wages where church "suffered or permitted" her employment where she continued to conduct services and minister to the parish after Board of Trustees terminated her employment. Civil penalty of 25% of unpaid wages upheld under Labor Law 218.
PR07057i04/23/2008New York Harm Reduction Educators, Inc.INTERIM: Petition dismissed in so far as it alleges that the Order is unreasonable or invalid for finding that Petitioner violated Labor Law 193, because a deduction from wages to recover alleged stolen funds is unlawful as a matter of law. Ref., Labor Law 193; Matter of Angello v. Labor Ready, y NY3d 579, 584 (2006).
CI 08-00304/23/2008Akunwanta Improvement Union Overseas, Inc.Certificate of Incorporation - Approved
CI 08-00504/23/2008Freelancers Union, Inc.Application of Authority to Conduct Business in New York - Approved.
CI 08-00804/23/2008Healthcare Industry Grant CorporationCertificate of Amendment of Certificate of Incorporation - Approved.
March 2008
Docket Number Date Issued Case Name Summary of Decision
PR 05-03503/26/2008L.R.H. Supermarket Inc. (D/B/A C-TOWN)Order to pay overtime affirmed where petitioner supermarket could not meet its burden of proof where it failed to keep required time and payroll records. Overtime rate of pay determined by dividing weekly salary by hours worked absent specific contract. Spread of hours pay due only where interval between beginning and end of employee's work day is in excess of 10 hours. Ref., Labor Law 661, 12 NYCRR 142-2.4, 2.6, 2.18.
PR 06-07403/26/2008Zodiac Kids, Inc.Order to pay overtime affirmed where petitioner could not meet its burden of proof where it failed to keep required time and payroll records. Overtime rate of pay based on hourly rate higher than minimum wage. Hearsay admissible where probative and reliable. Ref., Labor Law 661, 12 NYCRR 142-2.4, 2.6, 2.16.
PR 07-02503/26/2008IFA INC., and/or Andreyev Koroshikh and/or Feliks Andreyev (T/A Personal Touch Car Wash)Order to pay overtime affirmed where employer's time and payroll records were not credible Ref., Labor Law 661, 12 NYCRR 142-2.4, 2.6, 2.18.
PR 07-09303/26/2008Mohammed Aldeen and Island Farm Meat Corp. (T/A Al-Noor Live Poultry)INTERIM: Alleged unlawful presence of the Petitioner's employees in the United States does not bar the Commissioner of Labor from recovering overtime wages on their behalf. Refs: Board Rule 65.13; Balbuena v. IDR Realty LLC, 6 NY3d 338 (2006); Flores v. Amignon, 223 F.Supp.2d 462 (EDNY 2002); Pineda v. Kal-Tech Constr., 15 Misc.3d 176 (N.Y. Cty. Sup. 2007).
PES07-01203/26/2008The New York City Department of Juvenile Justice Crossroads Juvenile Center; The New York Department of Juvenile Justice Horizon Juvenile Center; The New York City Department of Juvenile Justice Bridges Juvenile CenterINTERIM: PES 07-012 (Crossroads Juvenile Center), PES 07-013 (Horizon Juvenile Center), and PES 07-014 (Bridges Juvenile Center) consolidated for hearing because the issues of fact and law are the same; and application for intervention of affected employees' collective bargaining representative granted. Refs: Board Rule 66.9; Board Rule 65.7; Board Rule 65.44.
CI 08-00403/26/2008USRH D.C. and P.T., P.C. - DBA Union Square Rehab and Health, D.C.P.T.Certificate of Incorporation - Approved.
February 2008
Docket Number Date Issued Case Name Summary of Decision
PR0603202/19/2008William Rand Fosdick (T/A Ellison-Rand Construction)Complainant was an employee and not an independent contractor, for purposes of specified work performed under an employment agreement. Refs., Brock v. Superior Care Inc., 840 F2d 1054, [2nd Cir. 1988]; Ansoumana v. Gristede's Operating Corp., 225 FSupp2d 184 [SDNY 2003].
PR0603802/19/2008Bruce Ribble (d/b/a Perfecto Cleaners)Upon an application for reconsideration of the Board's decision concerning Labor Law 195(6) penalty, further clarification was provided. However, the decision was sustained.
PR0703302/19/2008Valley Equipment Company, Inc.Employer's deductions from employees' wages for the right to use company owned vehicle for personal use was unlawful under Labor Law 193(1)(b). While the deductions at issue were voluntary and did benefit the employees, it was not expressly authorized under the statute or similar to the deductions authorized by the statute. Refs., Angello v. Labor Ready, Inc., 7 NY3d 579, [2006].
PES0700902/19/2008July 4 Ever, Inc. and Vincent EspositoThe Commissioner's order revoking the Petitioner's explosive dealer license and storage certificates based on the seizure of improperly stored Class C fireworks was invalid and unreasonable where Commissioner failed to prove seized fireworks were explosives. Refs., Tripoli Rocketry Assn, Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 437 F3d 75, 77 [DC Cir. 2006].
CI0702002/19/2008New York State Public Employer Labor Relations Association, Inc.Certificate of Incorporation - Approved.
CI0800102/19/2008Washingtonville Police Benevolent Association, Inc.Certificate of Incorporation - Approved.
January 2008
Docket Number Date Issued Case Name Summary of Decision
PR0605901/25/2008The Center for Financial Planning, Inc.Order requiring payment of vacation wages was affirmed where Petitioner's vacation leave policy did not adequately notify employees that accrued vacation leave would be forfeited upon termination.
PR0608201/25/2008Bellport, Inc. (T/A US Petroleum)In the absence of credible evidence to contradict the amount of unpaid overtime set forth in the Commissioner's Order, the Petitioner failed to meet its burden of proof and the Order was affirmed.
PR07019i01/25/2008Franbilt, Inc. and/or Thomas J. Barnes, and/or Michael J. BurnsINTERIM: Petition of Franbilt, Inc. dismissed where sole challenge that another company guaranteed payment did not relieve employer of liability for wages. The Petitions of the individuals will proceed to hearing.
CI0700701/25/2008Minority Steamfitters for Unity and Equality N.F.P.C.Certificate of Incorporation - Approved.
CI0701101/25/2008Abstinence Education CouncilCertificate of Incorporation - Approved.
CI0701601/25/2008Hudson Valley Non-Teaching Professional Organization, Inc.Certificate of Incorporation - Approved.
CI0701701/25/2008Union DentalCertificate of Incorporation - Disapproved.
CI0701801/25/2008Union Hotel Corfu NY, LLCCertificate of Incorporation - Approved.
CI0701901/25/2008Union of Dominican Visual Artists, Inc.Certificate of Incorporation - Disapproved.
CI0702101/25/2008New York State Carpenters Labor Management CorporationCertificate of Incorporation - Approved.
December 2007
Docket Number Date Issued Case Name Summary of Decision
PR0601512/19/200715 Sweet Thing, Inc. (T/A Dakota Bar and Grill)Certificate of Incorporation - Approved.
PR0603812/19/2007Bruce Ribble (D/B/A Perfecto Cleaners)Employer has burden of showing that complaining employees were paid properly where employer filed to keep adequate records. Refs. Angello v. Nat'l Fin. Corp., 1 AD3d 850 [3rd Dept 2003].
PR0607912/19/2007Rochester Linoleum and Carpet Center, Inc.Where there is a dispute over the terms of employment (specifically, in determining whether a sales representative is salaried or working on commission), if a written instrument signed by both parties exists, the terms of that instrument control. Additionally, any ambiguities in the contract are interpreted against the drafting party. Refs. Guasteferro v. Family Health Network of Central New York, 203 AD2d 905 [1944]; Jacobsen v. Sassower, 66 NY2d 991 [1985].
November 2007
Docket Number Date Issued Case Name Summary of Decision
PR0602411/28/2007Frank Bova and App (Al) Joseph (T/A Nina's Ameritalia Restaurant)Petitioner failed to meet his burden of proof where he only succeeded in showing the existence of a possible joint employer. Where Petitioner had authority and control over the restaurant employees and their wages he can be held liable for the wages owed. Ref. Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 AD2d 334 [2d Dept 1999]; Herman v. RSR Sec. Serv., Ltd., 172 F.3d 132 [2d Cir 1999].
PR0604911/28/2007Mudd (USA) LLC (T/A Mudd Jeans)Employer's failure to register as an apparel manufacturer violated Labor Law 341 where the creation of prototypes and samples was sufficient to make the employer a manufacturer, as defined under 340 (d) - (f). Additionally, finding the employees to be independent contractors would not have been sufficient to exempt the employer because 340 applies to both manufacturers and their production employees as well as those they contract with to produce apparel.
PR0605811/28/2007Sager Spuck Statewide Supply Co., Inc.Deductions from wages for health insurance premiums were unlawful under Labor Law 193 (3) where the employee's signature on a health insurance benefits plan agreement 2 years prior was insufficient to qualify as an express authorization for deductions. Refs. Huntington Hosp. v. Huntington Hosp. Nurses Assn., 302 F.Supp.2d 34 [EDNY 2004]; Sniadach v. Family Fin. Corp., 395 U.S. 337 [1969].
CI 07-01411/28/2007Brotherhood of Retired Union Carpenters, Inc.Certificate of Dissolution - Approved.
October 2007
Docket Number Date Issued Case Name Summary of Decision
PR0406010/24/2007Yellow Book USA, Inc., and/or Yellow Book of New York Inc.Orders finding commissions due to four advertising sales representatives affirmed. Petitioner's practice of taking "charge backs" (deducting money from commissions the claimants had already made for failure to renew with old clients) constituted illegal deductions under 193. Additionally, the protections afforded by 193 cannot be waived via contract. Refs. Gennes v. Yellowbook of New York, Inc., 3 Misc3d 520 [Sup Ct Nassau County 2004]; Hudacs v. Frito-Lay, Inc., 683 NE2d 322 [1997]; Levy v. Verizon Info. Serv., Inc., 498 FSupp2d 586 [EDNY 2007]; Dean Witter Reynolds, Inc. v. Ross, 75 AD2d 373 [1st Dept 1980].
PR0508210/24/2007Donald F. Farr, Jr., (D/B/A Don Farr Contractors Co.)Petitioner had sufficient authority and control over construction workers to establish their status as employees rather than independent contractors. Petitioner's failure to keep payroll records and/or provide other evidence to dispute the Claimant's testimony as to the hours worked bars the Board from finding in his favor. Refs. Byong v. Cipriani, 1 NY3d 193 [2003]; Ansoumana v. Gristede's Operating Corp., 255 FSupp2d 184 [SDNY 2003]; Brock v. Superior Care, Inc., 840 F2d 1054 [2d Cir 1988]; Anderson v. Mt. Clemens Pottery Co., 328 US 680 [1946]; Do Nam Yang v. ACBL Corp., 427 FSupp2d 327 [SDNY 2005].
PR0600810/24/2007SMS General Contractors, Inc.Order affirmed where Petitioner failed to meet his burden of proof where he provided no evidence to show that the Complainant mechanic had not worked for him during the specified time period.
PR0601810/24/2007Tiferes Academy (T/A Yeshivas Tifersavos High School)Claimant's alleged wrongdoing was insufficient justification for the withholding of wages where the Petitioner failed to show that the withholding was valid under 193. Additionally, employers are barred from withholding wages as a "self-help" remedy. Refs. Angello v. Natl. Fin. Corp., 1 AD3d 850 [3d Dept 2003]; P and L Group v. Garfinkel, 150 AD2d 663 [1989].
September 2007
Docket Number Date Issued Case Name Summary of Decision
PR 05-00909/26/2007Cayuga Lumber, Inc.Previous Board decision reconsidered and Order affirmed in full. There is a rebuttable presumption that salary does not include a premium for overtime hours. There must be an explicit agreement that salary compensates the employee for overtime. Further, the Board puts to rest its previous reliance on Harper v Fredonia Seed Co. when calculating overtime rates. Refs., Giles v. City of New York, 41 F Supp 2d 308 (SDNY 1999); Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1978); Doo Nam Yang v. ACBL Corp., 427 F Supp 2d 329 (SDNY 2005)
PR-06-02309/26/2007T'Amo Enterprises Inc. (T/A Taja Restaurant)Orders requiring payment of tip appropriations and minimum wage underpayments to wait staff are reasonable where Petitioner failed to meet burden of disproving amounts owed. A penalty of $1,000 for failure to keep or furnish adequate payroll records was also upheld. Refs., Angello v. National Finance Corp 1 AD 3d 850, 768 NYS 2d 66 (3d Dept. 2003)
CI0701509/26/2007World Lebanese Cultural Union, Inc.Certificate of Incorporation - Approved.
August 2007
Docket Number Date Issued Case Name Summary of Decision
PR0505208/22/2007JV Car WashOrder affirmed. Petitioner's evidence which consisted of notarized but undated and unsworn statements by car wash employees did not satisfy burden of proof where Petitioner had no payroll records. Refs., Angello v. National Finance Corp. 1 A.D. 3d 850, 768 N.Y.S. 2d 66 (3d Dept. 2003)
PR0506408/22/2007Workflow Solutions, LLC.Commissioned salesperson is entitled to commissions where the order should have been released and billed prior to termination. Additionally, charge backs on commissions can be illegal deductions in violation of Labor Law 193 under Gennes v. Yellow Book, 3 Misc. 3d 519, 776 N.Y.S. 2d 758 (2004), affd 23 A.D. 520, 806 N.Y.S. 646 (2nd Dept 2005)
PR0600308/22/2007Power Cooling, Inc.Wage deductions for misconduct such as missing property are outside of the statutory exceptions found in Labor Law 193. Refs., Hudacs v. Celebrity Limousine Corp., 205 AD 2d 155 (3d Dept 1994); Guepet v. International Tao Sys., Inc., 110 Misc 2d 940 (Sup Ct Nassau County 1981); Maggione v. Bero Constr. Corp., 106 Misc 2d 384 (Sup Ct Seneca County 1980)
PR0601908/22/2007Robert Scores (T/A On The Spot Auto Repair )Employer's failure to pay child support payments on employee's behalf while deducting amount from wages constitutes failure to pay all wages due to employee. Refs., Angello v. National Finance Corp., 1 A.D. 3d 850, 768N.Y.S. 2d 66 (3d Dept. 2003); Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680
PR0603508/22/2007Lia Kes LLC$3000 penalty for failure to register as apparel manufacturer upheld where Petitioner had prior violation
PR0609508/22/2007Mt. Kisco Design Center, Inc. and/or Roberta PicarelloMotion to Dismiss Petition granted where Petitioner failed to file Petition within 60 days of Order.
PES0500408/22/2007Brian ColellaA temporary public employee cannot be discharged in retaliation for filing a health and safety report.
CI0602908/22/2007National Collegiate Union, Inc.Proceeding discontinued for failure to file necessary information.
CI0700408/22/2007Union Hispanic Multiservices Corp.Proceeding discontinued for failure to file necessary information.
April 2004
Docket Number Date Issued Case Name Summary of Decision
PR0303904/28/2004Cor Route 31 Company, LLC (Bed, Bath & Beyond)Demand for Bill of Particulars may include request for production of documents. Ref. Board Rule 65.39 (12 NYCRR 65.39)