PR decisions 2008-2003

Docket Number Date Issued Case Name Decision Summary
PR06068 12/17/2008 Frank R. Kline, Nicholas C. Memmo, Klaus Koch, Stephen D. Weinroth and Joseph Ferguson Orders 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.
PR07092 12/17/2008 David 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.
PR08025 12/17/2008 Ira 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)
PR08061 12/17/2008 Norman 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.
PR08078i 12/17/2008 RAM 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.
PR06086 11/19/2008 My 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).
PR08129 11/19/2008 Sulakhan Singh and Earth Development and Construction Group, Inc. Petition dismissed as untimely.
PR07103 10/22/2008 Nathan 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.
PR08020 10/22/2008 Kamran 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.
PR06073 9/24/2008 Angela 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)
PR07035 9/24/2008 Gary 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).
PR07041 9/24/2008 Uncle 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).
PR08016 9/24/2008 Motion to dismiss Petition as untimely granted. Motion to dismiss Petition as untimely granted.
PR08022 9/24/2008 Borough Park Food Mart, LLC 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. Ref. Angello v. National Finance Corp., 1 AD3d 850 (3d Dept 2003).
PR08026 9/24/2008 Foster 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).
PR 07-019 7/30/2008 Franbilt, Inc. and/or Thomas J. Barnes, and/or Michael J. Burns The 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 07-022 7/30/2008 Apple Sports Wear, Inc. Order against apparel retailer modified where credible proof at hearing reduced hours worked by Complainant
PR 07-097 7/30/2008 Bella 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 08-023 7/30/2008 Diharam Singh and Efficient Auto Collision Repair, Inc. Petition dismissed as untimely.
PR 08-035 7/30/2008 Carlo Lauro and Arrowhead Pond Farm, Inc. (T/A Animales and Aves De Granja) Petition dismissed as untimely.
PR06027 6/25/2008 Urban 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.
PR06048 6/25/2008 Leah Wilen and Darren Wilen Order 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.
PR07047 6/25/2008 David 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].
PR07002 5/28/2008 Josef 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.
PR07094 5/28/2008 Clarence Carnahan Petition dismissed for failure to provide copy of Order of the Labor Commissioner or contact information.
PR07099 5/28/2008 Sokana 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
PR 05-068 4/23/2008 238 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 06-053 4/23/2008 Business 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 06-057 4/23/2008 Smarty of New York, Inc. Penalty for failure to register upheld where "cutting" is within definition of apparel manufacturing. Labor Law 340.
PR 06-099 4/23/2008 Michael 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 07-014 4/23/2008 Floral Park Community Church Interim 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.
PR07057i 4/23/2008 New 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).
PR 05-035 3/26/2008 L.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 06-074 3/26/2008 Zodiac 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 07-025 3/26/2008 IFA 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 07-093 3/26/2008 Mohammed 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).
PR06032 2/19/2008 William 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., 255 FSupp2d 184 [SDNY 2003].
PR06038 2/19/2008 Bruce 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.
PR07033 2/19/2008 Valley 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].
PR06059 1/25/2008 The 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.
PR06082 1/25/2008 Bellport, 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.
PR07019i 1/25/2008 Franbilt, Inc. and/or Thomas J. Barnes, and/or Michael J. Burns INTERIM: 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.
PR06015 12/19/2007 15 Sweet Thing, Inc. (T/A Dakota Bar and Grill) Certificate of Incorporation - Approved.
PR06038 12/19/2007 Bruce 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].
PR06079 12/19/2007 Rochester 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].
PR06024 11/28/2007 Frank 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].
PR06049 11/28/2007 Mudd (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.
PR06058 11/28/2007 Sager 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].
PR04060 10/24/2007 Yellow 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].
PR05082 10/24/2007 Donald 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].
PR06008 10/24/2007 SMS 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.
PR06018 10/24/2007 Tiferes 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].
PR 05-009 9/26/2007 Cayuga 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-06-023 9/26/2007 T'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)
PR05052 8/22/2007 JV Car Wash Order 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)
PR05064 8/22/2007 Workflow 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)
PR06003 8/22/2007 Power 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)
PR06019 8/22/2007 Robert 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
PR06035 8/22/2007 Lia Kes LLC $3000 penalty for failure to register as apparel manufacturer upheld where Petitioner had prior violation
PR06095 8/22/2007 Mt. Kisco Design Center, Inc. and/or Roberta Picarello Motion to Dismiss Petition granted where Petitioner failed to file Petition within 60 days of Order.
PR03039 4/28/2004 Cor 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)
PR 32-83 and PR 33-83 5/28/1997 Settlement Home Care, Inc.