Opinion
17271 Index No. 158074/20 Case No. 2021–03811
02-09-2023
In the Matter of Tak Yuet KONG et al., Petitioners, v. The COMMISSIONER OF LABOR et al., Respondents.
Law Offices of Vincent S. Wong, New York (Eugene Kroner of counsel), for petitioners. Letitia James, Attorney General, New York (Lawrence J. Reina of counsel), for respondents.
Law Offices of Vincent S. Wong, New York (Eugene Kroner of counsel), for petitioners.
Letitia James, Attorney General, New York (Lawrence J. Reina of counsel), for respondents.
Kern, J.P., Singh, Shulman, Pitt–Burke, Higgitt, JJ.
Determination of respondents, dated June 24, 2020, which affirmed the Hearing Officer's decision to the extent of ordering compliance with article 19 of the Labor Law and imposing a penalty, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [Arthur F. Engoron, J.], entered July 2, 2021), dismissed, without costs.
Petitioners failed to sustain their evidentiary burden before the Industrial Board of Appeals (IBA) of showing error in the Commissioner of Labor's findings (see Matter of Baudo v. New York Indus. Bd. of Appeals, 154 A.D.3d 535, 536, 61 N.Y.S.3d 887 [1st Dept. 2017] ). Substantial evidence supports the IBA's conclusion that petitioner Tak Yuet Kong was an employer, as shown by petitioners’ own pleadings and hearing testimony from one of the wage claimants, as well as the testimony from petitioner Yu Fu Zhang (see Romero v. Martinez, 280 A.D.2d 58, 61, 721 N.Y.S.2d 17 [1st Dept. 2001], lv. denied 96 N.Y.2d 721, 733 N.Y.S.2d 373, 759 N.E.2d 372 [2001] ). Substantial evidence also supports the IBA's determination on petitioners’ violations of the Labor Law. The IBA properly weighed petitioners’ timesheet evidence, which was intended to show their compliance with the record-keeping requirements of Labor Law § 661, and determined that the timesheets were insufficient to show compliance with the requirement that employers keep contemporaneous and accurate payroll records showing, for each week worked, the hours worked and the rates of pay (see Matter of Ramirez v. Commissioner of Labor of State of N.Y., 110 A.D.3d 901, 901, 972 N.Y.S.2d 696 [2d Dept. 2013] ). Indeed, the timesheets are inconsistent with Zhang's testimony regarding how many hours each claimant worked. Moreover, since petitioners failed to provide credible evidence of the required records, the IBA properly relied on the claimants’ accounts of the hours worked to calculate the wage underpayment (see Cha v. New York State Indus. Bd. of Appeals, 204 A.D.3d 602, 603, 168 N.Y.S.3d 415 [1st Dept. 2022] ). IBA properly assessed civil penalties, which were also supported by substantial evidence, as petitioners failed to show a good-faith basis for believing that their actions complied with the Labor Laws. Likewise, the IBA correctly assessed interest at the statutory rate ( id. at 603–604, 168 N.Y.S.3d 415 ).
We reject petitioners’ due process claims, as they were afforded multiple de novo hearings with the opportunity to submit evidence and call witnesses (see Matter of Daxor Corp. v. State of N.Y. Dept. of Health, 90 N.Y.2d 89, 98, 659 N.Y.S.2d 189, 681 N.E.2d 356 [1997], cert denied 523 U.S. 1074, 118 S.Ct. 1516, 140 L.Ed.2d 669 [1998] ; Matter of Cadman Plaza N., Inc. v. New York City Dept. of Hous. Preserv. & Dev., 290 A.D.2d 344, 344, 737 N.Y.S.2d 590 [1st Dept. 2002] ). Furthermore, petitioners never raised objections at the hearings to the admissibility of the claimant's testimony, nor did they contend at the hearings that the Cantonese interpreter had made errors in translating the testimony (see Matter of Hamilton v. Goord, 32 A.D.3d 642, 643, 819 N.Y.S.2d 624 [3d Dept. 2006] ).