Motion-Secondary: Jagtar Singh v. The Commissioner Of Labor, State Of New York Industrial Board Of Appeals

On May 11, 2018 a Motion-Secondary was filed involving a dispute between Jagtar Singh, and State Of New York Industrial Board Of Appeals, The Commissioner Of Labor, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of
Index No.:
JAGTAR SINGH,

Petitioner,

For a Judgment Pursuant to Article 78
of the Civil Practice Laws and Rules,

-against-

THE COMMISSIONER OF LABOR and THE STATE
OF NEW YORK INDUSTRIAL BOARD OF APPEALS,

Respondents.

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PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF THE PETITION

On the Brief: Ricotta & Marks, P.C.
Thomas Ricotta, Esq. Attorneys for Petitioner
37™
31-10 37 Avenue, Suite 401

Long Island City, New York 11101

(347) 464-8694 (Phone)

(800) 483-4508 (Facsimile)

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PRELIMINARY STATEMENT
("Singh" "Petitioner"
Petitioner Jagtar Singh or "Petitioner") brings this action, pursuant to Article 78

of the New York Civil Practice Laws and Rules ("CPLR Article 78"), to challenge determinations

by the New York State Department of Labor ("DOL") and the New York State Industrial Board

("Santos"
of Appeals ("IBA") finding that Rolando Santos or "Vic") was an employee of The

Wine Shoppe of Oakland Gardens and/or that he was not properly paid in compliance with New

Respondents'
York State Labor Law for all hours worked. determination that Singh (and The

Wine Shoppe of Oakland Gardens) employed Santos and/or that he did not properly compensate

Santos to the extent Santos was an employee (which the facts and law clearly establish he was not)

was made in bad faith and/or for an improper reason and was arbitrary and capricious. Petitioner,

submits this Memorandum of Law, along with the Verified Petition, and the exhibits attached

thereto, in support of his Petition.

STATEMENT OF FACTS

Ownership and Operation of The Wine Shoppe of Oakland Gardens, Inc.

("
Singh purchased The Wine Shoppe of Oakland Gardens, Inc. ("The Wine Shoppe") in or

around April 2009. (Tr. Ex. D - Petitioner's Ex. 1). Singh received his liquor license in March
20;

2010. (Tr. Ex. D - Petitioner's Ex. 1). Singh never employed anyone at The Wine
20, 22; Shoppe,

owning and operating ithimself with occasional assistance from his family, including his son. (Tr.

77, 79). Singh's son, Jagpreet Singh ("Jagpreet"), would help his father at The Wine Shoppe a few

days a week. (Tr. 84). Jagpreet corroborated that, during the time his father owned The Wine

Shoppe, there were no employees of the store. (Tr. 84).

During the course of time that he owned The Wine Shoppe, Singh tracked all income and

expenses on a basis in a book that he maintained. (Tr. 34-35. Ex. D - Petitioner's
daily 37-41, 43;

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Ex. 4). Singh's records reflect the daily income, taxes, profit, and expenses The Wine Shoppe

experienced from September 2009 through August 2012. (Ex. D - Petitioner's Ex. Tr. 39-
6, 31, 4;

41). Singh maintained these records on a daily basis. (Tr. 43-44).

Singh sold the Wine Shoppe in or around July or August 2012 and no longer maintained

an ownership or interest in the store thereafter. (Tr. 74; Petitioner's Ex. 4 and 6).

"Vic"
Rolando Santos ("Vic")

("Santos" "Vic."
Singh knew Rolando Santos or "Vic") as (Tr. 33). Santos acknowledged

"Vic"
that he uses as a nickname. (Tr. 98). Singh would see Santos walking around the street in

the neighborhood in or around 2010, and Santos would walk around the neighborhood collecting

cans from people's recycling, and would come to The Wine Shoppe to purchase lotto tickets. (Tr.

33-34). Santos acknowledged that he has been collecting cans throughout the neighborhood since

1985. (Tr. 99). Occasionally, when Santos would be hanging around the store, Singh would offer

to pay him for Santos to perform menial tasks such as vacuuming or cleaning bottles. (Tr. 34).

Whenever Santos requested to perform such tasks, Singh paid him a minimum of $10 per hour and

would log the amount of time Santos worked and the amount he was compensated for the work

within a book he maintained wherein he tracked all the business's daily income and expenses. (Tr.

34-35, 37-41, 43; Petitioner's Ex. 4). Santos would not come to the store every day, but would

come to the store two or three times per week, on average. (Tr. 35-36). Singh did not dictate to

Santos as to when he had to be atthe store or when he had to perform tasks at the store, and never

had any sort of schedule for him. (Tr. 36). Rather, Santos would come to the store, and leave the

store, whenever he chose to do so. (Tr. 36). Jagpreet knew Santos and saw him occasionally at

the store. (Tr. 84-85). Santos would either be lingering around outside or inside the store, and

would occasionally be doing something with Singh such as cleaning. (Tr. 85). When Santos was

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outside, he would be pushing a cart around the neighborhood and would smoke cigarettes, get

food, come into the store and chat with people, and would come and go throughout any given day

as he pleased. (Tr. 85). Santos never functioned as a cashier at the store. (Tr. 80). In addition to

some of the cleaning, sometimes Santos would bag bottles for customers, but was never allowed

near the register or asked to ring up sales. (Tr. 80). Jagpreet corroborated that Santos never worked

as a cashier, but would sometimes be at the counter bagging bottles for customers. (Tr. 85). When

Singh would run next door, Santos was not able to operate a register or function as a cashier, but

would rather just tella customer that might come in that Singh just ran next door and will be right

back. (Tr. 72). Singh kept a daily record for his accountant and for the IRS regarding the amount

of money he paid to Santos as well as the sales and expenses that occurred on a daily basis. (Tr.

37-41; Petitioner's Ex. 4). Based on the records reflected within Petitioner's Exhibit 4, Santos was

paid a minimum of $10 per hour worked, or was otherwise provided the cash value in lotto tickets

in exchange for the work performed. (Tr. 34-35, 37-41, 43; Petitioner's Ex. 4). Santos did not

perform work beyond the dates and times outlined within these records. (Tr. 75). Santos did not

work over eighty hours per week at Singh's store, as Santos alleges. (Tr. 75). Santos did not work

seven days a week at Singh's store, as Santos alleges. (Tr. 75). Singh submitted the records he

created to his accountant and reported the payments he made to Santos to the I.R.S. (Tr. 82;

Petitioner's Ex. 5). Form 1099s were submitted to the IRS and given to Santos for 2010, 2011,

and 2012, reflecting that those are the only years that he performed any work for The Wine Shoppe.

(Petitioner's Ex. 5). On March 27, 2012, Singh left Santos in the store alone momentarily to go

next door and buy a sandwich. (Tr. 70-72). Later that night, Singh identified that there was a $250

shortage in lotto tickets and believed, as a result of the events of that day, that Santos had stolen

the $250 in lotto. (Tr. 71-72). After Singh confronted Santos on the theft and advised Santos that

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Santos'
he would contact the police if the stolen lotto was not returned to him, sister contacted

Singh and threatened him that they would contact the Department of Labor to try and get Singh in

trouble as retaliation for Singh's threats to report the theft. (Tr. 72-73). After that March 27, 2012

incident, Singh did not see Santos at the store any further. (Tr. 73-74). The records maintained

by Singh on a daily basis, and in the normal course of his business, reflect that Santos first

performed tasks for the store, and was paid for this work, on or about March 6, 2010. (Tr. 42;

Petitioner's Ex. 4, p. 7). Singh explained that for each entry, he would identify the hours worked

and then the amount paid. (Tr. 42-43). Singh paid Santos $10 for each hour he worked, and would

stillgive him $10 if he only worked one half of an hour. (Tr. 43-44). Some entries reflect that,

instead of cash, Santos would be paid in lotto tickets or in food. (Petitioner's Ex. 4; Tr. 44-46).

Santos'
Singh testified that this would be done at request. (Tr. 44-46). Based on the

contemporaneous records created and maintained by Singh on a daily basis, Santos worked the

following hours:

2009: No hours

2010: 127.5 hours total for the year

2011: 60 hours total for the year

2012: 39 hours total for the year

(Petitioner's Ex. 4).

Santos was paid $1,092 in 2010, in addition to receiving non-cash consideration for the work he

performed. (Petitioner's Ex. 4-5). Not even factoring in the non-cash consideration that Santos

received for the work performed (cash value in lotto and food), based on Singh's records, Santos

was paid approximately $8.56 in money for each hour worked in 2010. (Petitioner's Ex. 4-5). In

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$7.25.1
2010, New York State minimum wage was Santos was paid $582 in 2011, in addition to

receiving non-cash consideration for the work he performed. (Petitioner's Ex. 4-5). Not even

factoring in the non-cash consideration that Santos received for the work performed (cash value in

lotto and food), based on Singh's records, Santos was paid approximately $9.70 in money for each

hour worked in 2011. (Petitioner's Ex. 4-5). In 2011, New York State minimum wage was $7.25.

(See footnote 1, supra). Santos was paid $463 in 2012, in addition to receiving non-cash

consideration for the work he performed. (Petitioner's Ex. 4-5). Not even in the non-
factoring

cash consideration that Santos received for the work performed (cash value in lotto and food),

based on Singh's records, Santos was paid approximately $11.87 in money for each hour worked

in 2012. (Petitioner's Ex. 4-5). In 2012, New York State minimum wage was $7.25. (See footnote

1, supra).

Santos'
Issues with Testimony

Putting aside credibility determinations, Santos made various factual admissions that were

overlooked or not properly considered by Respondents. For example, Santos testified,

emphatically and repeatedly, that he ceased working for Singh on July 21, 2011 and that any

Santos'
allegations that he worked or was paid thereafter are false. (Tr. 95, 99-100). Minimum

"worked" -
Wage/Overtime Complaint, however, identifies his last day as July 21, 2012. (Ex. D

Respondent's Ex. A).

Santos claimed, however, even in seeing this date on the form, that he filled out the

complaint himself and that allthe writing was his own. (Tr. 102-103). Santos signed the complaint

knowing that making false statements in the complaint is a crime. (Tr. 101). Santos alleges that

1A Labor's
history ofthe hourly minimum wage inNew York Stateis availableon the Department of website at
https://wwwlabor.ny.gov/stats/minimum wage.asp.

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the date his signature is false and that it should have been not 2012. (Tr. 101-
by July 21, 2011,

102). Santos acknowledges that he was out of the country in the Philippines from January 2011

to May 2011. (Tr. 96, 103). During this period, he did not work at The Wine Shoppe. (Tr. 96).

His complaint does not state that, however, and as a result, he claimed damages for a period which

he knew he did not work. (Ex. D - Respondent's Ex. p. 2). Santos admitted that he was not
A,

entitled to any damages for the period of January 2011 to May 2011. (Tr. 104). Santos

acknowledged that he did not so indicate on his complaint that he was not seeking damages for

that time period, but argued that there was nowhere on the form for him to indicate such

information. (Tr. 104). This is despite the fact that there was a section on the form (30D) which

requested a listof all dates of vacation periods. (Tr. Ex. D - Respondent's
absence, including 104;

Ex. A, p. 2). And, in fact, despite his swearing under oath that there was no space on the form for

him to identify periods of absence from work, he actually listed a different time period from

November 2004 to April 2005 in section 30(d), but omitted the 2011 period (which conveniently

was the time period within the recoverable statute of limitations) from the form. (Tr. 104-05; Ex.

D - Respondent's Ex. p. 2). Santos then tried to explain that because he ran out of space on the
A,

form, he did not think he had to advise the Department of Labor of the January 2011 through May

2011 absence. (Tr. 104-05). Santos similarly failed to indicate in paragraph 31 of his complaint

that there was this five month period (from January 2011 through May 2011) wherein he was not

and was not entitled to damages. (Tr. Ex. D - Respondent Ex. p. 2).
working 105-06; A,

STANDARD OF REVIEW

Pursuant to CPLR Article 78, a petitioner may seek review of an administrative body's decision

where the decision is deemed final. C.P.L.R § 7801. A decision is final when: "(1) the agency

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position is definitive; (2) such position inflicts actual, concrete injury; and (3) the agency action is

"complete," injury."
i.e.,no further agency proceedings might alleviate or avoid the Essex County

v. Zagata, 91 N.Y.2d 447 (1998).

The proper standard of review is whether the determination was made "in violation of

lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of

discretion."
C.P.L.R §7803(3). A decision is arbitrary and capricious when itis made "without sound

facts."
basis in reason and generally taken without regard to the Pell v. Board of Education of Union

Free School District, 34 NY2d 222, 231 (1974).

Respondents'
The action or decision must be made after considering all facts presented.

(1"
S_ee Hanzich v. Waterfront Commission of New York, 286 A.D. 835 Dept. 1955). Moreover,

contrary."
"[p]resumptions can not stand when faced with factual evidence to the GH Ville, Inc.

v. New York City Environmental Control Board, 194 Misc.2d 503, 507 (Sup. Ct. N.Y. 2002).

ARGUMENT

I. The Determination That Santos Was an Employee Under New York Labor Law
was Wrong as a Matter of Law

The determination as to whether an individual is an independent contractor or an employee

requires the application of the common law of agency. Eisenberg v. Advance Relocation &

Storage, Inc., 237 F.3d 111, 113 (2d. Cir. 2000)). The primary factors to be considered are:

[1] the hiring party's right to control the manner and means by which the

product is accomplished . . .;[2] the skill required; [3] the source of the

instrumentalities and tools; [4] the location of the work; [5] the duration of

the relationship between the parties; [6] whether the hiring party has the

right to assign additional projects to the hired party; [7] the extent of the

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hired party's discretion over when and how long to work; [8] the method of

payment; [9] the hired party's role in hiring and paying assistants; [10]

whether the work is part of the regular business of the hiring party; [11]

whether the hiring party is in business; [12] the provision of employee

benefits; and [13] the tax treatment of the hired party.

Id. at 114.

The "essential element of the relationship is the right of control, that is,the right of one

latter."
person, the master, to order and control another, the servant, the performance of work by the

(4d'
State Div. Of Human Rights v. GTE Corp., 487 N.Y.S.2d, 234, 235 Dept. 1985) (citing 36 NY

Jur, Master and Servant § 2). To determine whether a worker is an independent contractor or an

inquiry"
employee, the "critical is the degree of control asserted by the "purported employer over

produced."
the results Hernandez v. Chefs Diet Delivery, LLC, 81 A.D.3d 596, 597 (N.Y. App.

Div. 2011) (quoting Bynog v. Cipriani Group, 1 N.Y.3d 193, 198 (2003)). "Minimal or incidental

contact"
does not establish an employment relationship. Id. (quoting Bhanti v. Brookhaven Mem.

Hosp. Med. Ctr., 260 A.D.2d 334, 335 (N.Y. App. Div. 1999)). The most significant factor to

means"
consider is the employer's "[c]ontrol over the of production. Id. Other factors to consider

include

(1) the degree of control exercised by the employer over the
workers'
workers, (2) the opportunity for profit or loss and their

investment in the business, (3) the degree of skill and independent

initiative required to perform the work, (4) the permanence or

duration of the working relationship, and (5) the extent to which the

work is an integral part of the employer's business.

Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988) (citing United States v. Silk,

331 U.S. 704, 716 (1947)).

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"employer"
To determine whether an individual qualifies as an "employer"... . . . "the overarching

concern is whether the alleged employer possessed the power to control the workers in question .

reality' case."
. . with an eye to the 'economic presented by the facts of each Herman v. RSR Sec.

Servs. Ltd, 172 F.3d 132, 139 (2d Cir. 1999).

Here, the credible evidence establishes that Santos does not meet the standard the law

requires to be considered an employee, as he controlled when and what work he performed for

Petitioner, dictated when he came and went, and did not perform any work that required any

discernable skill. Singh and his son testified to the fact that Santos would come to the store at his

leisure, typically while he was in the process of collecting recycling from the neighborhood.

Moreover, the informal and non-employment relationship that existed here is further highlighted

by the fact that, by his own admission, Santos left for over three months in order to go to the

Phillipines, returning and coming back around to the store when he chose to do so. Clearly here,

there was not the requisite control between Singh and Santos such that Santos should be considered

an employee under the law.

The economic realities of this situation are clear. Singh was the owner and sole operator

of a liquor store that struggled to sustain itself,he would occasionally enlist in the help of his son,

or have a friend watch over the store if he was not able to be there, and he also offered money to

Santos on a per diem basis when he was loitering around the store to perform some menial work.

This does not create an employee/employer relationship. Moreover, there is no credible evidence

to suggest that Santos was required to work on certain days or for any specific length of time when

he did perform work at the Wine Shoppe. Furthermore, the credible evidence and irrefutable

documentation establishes that Singh was not the owner of Egan during the period of time within

the statute of limitations that Santos alleges he worked at Egan, and as such, cannot be considered

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his employer for that period, or deemed responsible for any damages flowing from that period, if

any are deemed to exist.

II. The Board Erred in Failing to Consider Singh's Contemporaneous Business
Records

It is respectfully submitted that the Board erred in discounting Singh's contemporaneous

records of the amount of time Santos worked for him (Ex. D - Petitioner's Ex. in
4), particularly

light of the fact that those records were corroborated by both Singh and the tax documents

submitted as Petitioner Ex. 5. (Ex. D - Petitioner's Exhibit 5). More while the Board
specifically,

asserted that these records were incoherent and/or created after the fact, Singh provided Form

1099s which reflected and corroborated those records in that the amount of money listed on the

1099s corresponded, to a large degree, to the time and money paid as referenced in Singh's records.

While these records were not perfect, by any stretch, they also serve to bolster the credibility of

Singh. Had he believed he had an employee, he would have maintained better records. Moreover,

had he believed he was skirting Labor Laws in how he was handling Santos, he likely would not

have maintained these records or reported same to the I.R.S. Accordingly, it is respectfully

submitted that the Board should have given credit to Singh's business records, particularly where,

as here, there was no evidence to suggest that these records were not accurate, contemporaneous

records that he kept in the normal course of business. In failing to do so, the IBA erred and their

determination was arbitrary and capricious.

Based on the contemporaneous records created and maintained by Singh on a daily basis,

Santos worked the following hours:

2009: No hours

2010: 127.5 hours total for the year

2011: 60 hours total for the year

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2012: 39 hours total for the year

(Ex. D - Petitioner's Ex. 4).

Santos was paid $1,092 in 2010, in addition to receiving non-cash consideration for the work

he performed. (Ex. D - Petitioner's Ex. 4-5). Not even in the non-cash consideration
factoring

that Santos received for the work performed (cash value in lotto and food), based on Singh's

Santos was paid $8.56 in for each hour worked in 2010. (Ex. D -
records, approximately money

Petitioner's Ex. 4-5). In 2010, New York State minimum wage was $7.25. Santos was paid $582

in in addition to non-cash consideration for the work he performed. (Ex. D -
2011, receiving

Petitioner's Ex. 4-5). Not even factoring in the non-cash consideration that Santos received for

the work performed (cash value in lotto and food), based on Singh's records, Santos was paid

$9.70 in for each hour worked in 2011. (Ex. D - Petitioner's Ex. 4-5). In
approximately money

2011, New York State minimum wage was $7.25. Santos was paid $463 in 2012, in addition to

non-cash consideration for the work he performed. (Ex. D - Petitioner's Ex. 4-5). Not
receiving

even factoring in the non-cash consideration that Santos received for the work performed (cash

value in lotto and food), based on Singh's records, Santos was paid approximately $11.87 in money

for each hour worked in 2012. (Ex. D - Petitioner's Ex. 4-5). In New York State minimum
2012,

wage was $7.25.

Based on the above, it isrespectfully submitted that the records maintained by Singh, as

well as the tax documents provided (Ex. D - Pet. Ex. 4 and establish that Santos was paid above
5)

minimum wage and properly for any and all time he performed work for Singh. Accordingly, itis

submitted that the Board erred in reaching the determination that Singh did not properly

compensate Santos, even to the extent it is deemed that Santos is an employee (which for the

reasons set forth above, itis submitted would be an error as a matter of law).

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IIL Singh Should Not be Responsible for Liquidated Damages

Pursuant to New York Labor Law §l98(1-a), liquidated damages shall be assessed

against an employer deemed to have made an underpayment under the labor law unless the

employer proves a good faith basis for believing that itsunderpayment of wages was in compliance

with the law. NY LL §198(1-a). In the present case, for the reasons set forth above, liquidated

damages are inappropriate as Santos was not an employee under the law, and as such, is not

covered by the above-referenced statutes. In the present case, for the reasons set forth above,

liquidated damages are inappropriate as the credible evidence establishes that, even if Santos were

to be considered an employee under the law, he was paid above minimum wage for the work he

performed. In the present case, for the reasons set forth above, liquidated damages are

inappropriate as the credible evidence establishes that, even if Santos were to be considered an

employee under the law, and even were itto be determined that he was not paid minimum wage,

Singh testified to a good faith belief that he was complying with the law. This is further evidenced

by the fact that Singh maintained records of the time and payments provided to Santos, and that

Singh reported all payments to Santos to the LR.S. - not the actions of someone that is
clearly

knowingly or intentionally trying to skirt the law. Accordingly, any award of liquidated damages

should be vacated.

CONCLUSION

Based on the foregoing, as well as the testimony and evidence submitted herein, Petitioner

respectfully requests that the Industrial Board of Appeal's Determination upholding, in part, the

Department of Labor's Order to Comply in this matter be deemed invalid and/or unreasonable,

and that Santos be deemed to have either not been an employee or, in the alternative, to have been

paid a sufficient rate of pay for the work he performed.

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Dated: Long Island City, New York

May 11, 2018

Respectfully submitted,

RICOTTA & MARKS, P.C.

Attorneys for Petitioner
37th
31-10 Avenue, Suite 401

Long Island City, New York 11101

(347) 464-8694

Thomas Ricotta

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Case Info

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