Opinion
2013-03-26
In re HEENAM BAE, etc., et al., Petitioners, v. The INDUSTRIAL BOARD OF APPEALS, et al., Respondents.
Klein Zelman Rothermel, LLP, New York (Jesse Grasty of counsel), for petitioners. Eric T. Schneiderman, Attorney General, New York (Benjamin Holt of counsel), for respondents.
Klein Zelman Rothermel, LLP, New York (Jesse Grasty of counsel), for petitioners. Eric T. Schneiderman, Attorney General, New York (Benjamin Holt of counsel), for respondents.
GONZALEZ, P.J., SWEENY, RENWICK, MANZANET–DANIELS, ROMÁN, JJ.
Determinations of respondent Industrial Board of Appeals, dated September 9, 2011, and December 14, 2011, which, respectively, inter alia, directed respondent Commissioner of Labor to recalculate a wage order dated August 27, 2009, and issue an amended wage order, and, upon application for reconsideration, adhered to the prior determination, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alexander W. Hunter, Jr., J.], entered on or about February 23, 2012) dismissed, without costs.
Substantial evidence supports the Board's determination that the claimant, Mehmet Aydin, worked 56 hours per week at petitioners' dry cleaning plants from August 2000 until January 30, 2005, and is entitled to unpaid overtime and interest ( see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). Aydin testified that, during this period, he worked from 7:30 or 8 a.m. until 6 p.m. on weekdays and from 8 a.m. until 5 p.m. on Saturdays. The burden then shifted to petitioners to produce evidence of “the precise amount of work [he] performed” or to undermine “the reasonableness of the inference to be drawn from [his] evidence” ( see Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 [1946];see Matter of D & D Mason Contrs., Inc. v. Smith, 81 A.D.3d 943, 944, 917 N.Y.S.2d 283 [2d Dept. 2011], lv. denied17 N.Y.3d 714, 2011 WL 5041665 [2011];Matter of Hy–Tech Coatings v. New York State Dept. of Labor, 226 A.D.2d 378, 379, 640 N.Y.S.2d 581 [2d Dept. 1996] ). Petitioners admit that they maintained no records of Aydin's hours for the relevant time period; they attempted to reconstruct those hours. The Board was entitled to credit Aydin's testimony and to discredit petitioners' reconstruction, which was based upon a series of estimates and extrapolations that rested on dubious or unsubstantiated assertions, including monthly dry cleaning revenue figures ( see Matter of Café La China Corp. v. New York State Liq. Auth., 43 A.D.3d 280, 281, 841 N.Y.S.2d 30 [1st Dept. 2007] ).
Petitioners failed to show that the hearing was tainted by bias or that they were otherwise deprived of their right to due process ( see Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 546 N.Y.S.2d 335, 545 N.E.2d 625 [1989]; Matter of Sunnen v. Administrative Rev. Bd. for Professional Med. Conduct, 244 A.D.2d 790, 666 N.Y.S.2d 239 [3d Dept. 1997], lv. denied92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432 [1998] ).
We have considered petitioners' remaining arguments and find them unavailing.