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BURKS v. JAKUBOWSKI

May 6, 1993

JOHN A. BURKS, SR., Plaintiff,
v.
JOSEPH V. JAKUBOWSKI, FLORIO A. VITULLO, BEATRICE L. HOFFMAN, CYNTHIA SMITH and BRENDA M. TULLIS, Defendants.



The opinion of the court was delivered by: NEAL P. MCCURN

 MEMORANDUM-DECISION AND ORDER

 BACKGROUND

 Plaintiff John Burks alleges that he was harrassed as a result of complaints filed by several of his employees with the Utica office of the Department of Labor ("Department") between March and June of 1989. Plaintiff's former employees, who are named as defendants in this action, alleged in those complaints *fn1" that plaintiff failed to pay them wages in accordance with the agreed terms of employment. On April 13, 1989, the Department sent plaintiff its first collection letter *fn2" in response to complaints filed by two of his employees, Laureen Williams and Cynthia June Smith. The collection letter specifically advised plaintiff Burks that if he disputed the amount due to those former employees, he must submit a "full statement . . . explaining why this amount is not due and payable to the claimants." Defendants' exh. F. The Department's Utica office did not receive a response to this letter. Jakubowski Affidavit at P 12.

 Around May 9, 1989, the Department sent plaintiff a second collection letter concerning the complaints of Ms. Smith and Ms. Williams advising him in part that:

 
Article VI of the New York Labor Law specifies that failure to pay an agreed wage and/or supplement is a misdemeanor, and such situations fall within this department's civil/criminal jurisdiction of the New York State Labor Law. Under the Law, employers and officers and agents of a corporation are personally responsible for the failure of a business entity to pay wages and a non-operating status does not relieve the responsible parties of the liability arising from the failure to pay wages.

 Defendants' exh. G. The letter demanded a reply by May 30, 1989.

 On May 9, 1989, plaintiff was sent another first collection letter nearly identical to that sent in connection with Ms. Smith and Ms. Williams. This letter related to complaints for unpaid wages filed by two other defendant employees, Beatrice Hoffman and Brenda Tullis. Defendants' exh. H. As with the first collection letter sent in connection with Williams and Smith, the Department's Utica office again did not receive any response to this letter. Jakubowski Affidavit at P 14.

 In accordance with Department procedure, on May 24, 1989, plaintiff was sent a second collection letter concerning the complaints filed by Ms. Hoffman and Ms. Tullis. Defendants' exh. I. A day later, on May 25, 1989, plaintiff was sent a first collection letter in response to a complaint for unpaid wages filed by yet another defendant employee, Lisa DesGrosielliers. Defendants' exh. J. Plaintiff finally responded to all of these collection letters on June 7, 1989 in the form of three separate letters. In those letters, plaintiff described himself as the "Managing Director" of Aaron Consulting Services, Inc. and asserted that his firm did not owe any of the complaining employees unpaid wages, since they were independent contractors. Defendants' exh. K.

 A compliance conference *fn3" was scheduled on August 30, 1989, to address the unpaid wage complaints filed against plaintiff by the above named employees. Defendants' exh. L. At the conference, plaintiff reasserted that those employees were independent contractors and thus were not owed any wages. He further claimed that he had documentation to prove this. Therefore, plaintiff was given until September 13, 1989, to submit that supporting documentation. The plaintiff failed, however, to submit any documentation by the designated date. Thus on November 22, 1989, the Department issued an order to plaintiff requiring him to comply with a schedule to pay unpaid wages to those employees who had filed complaints with the Department. *fn4" Defendants' exh. O. The notice accompanying the orders to comply, advised plaintiff to send a check or money order, payable to the Commissioner of Labor, for the amount due including interest and penalties, which totalled $ 2,916.16. Plaintiff was given sixty days to appeal this order to the Industrial Board of Appeals pursuant to section 101 of the New York Labor Law. Defendants' exh. O. Significantly, plaintiff did not timely file such an appeal.

 The Department's Division of Labor Standards then prepared a prosecution recommendation, consisting of the orders to comply, the compliance conference report, supporting depositions signed by the complainants, and a February 5, 1990 inter-office memorandum. The prosecution recommendation was transmitted to the New York Attorney General's Office which prepared a criminal information. On April 3, 1990, defendant Jakubowski signed and swore to the criminal information charging plaintiff with five counts of violating section 191(1)(d) of New York's Labor Law. *fn5" Defendants' exh. Q. On January 31, 1992, while being represented by counsel, plaintiff pleaded guilty in the City Court of Rome, New York to the five counts alleged in the criminal information. See Defendants' exh. R (transcript of plea).

 Before turning to the merits of defendants' motion, the court will review the somewhat twisted procedural history of this case to clarify which of the numerous defendants originally named in this action are still proper parties hereto. Plaintiff initiated this action on June 4, 1990, naming the following state employees as defendants: Director of the Division of Labor Standards, Richard Polsinello; Supervising Labor Standards Investigator, Diane Fiano; Senior Labor Standards Investigator, Joseph Jakubowski; Division of Labor Standards Supervisor, Michael Java; and the Department's Assistant Commissioner for Labor, Florio Vitullo. Plaintiff also named as defendants a number of his former employees who had complained to the Department about his failure to pay wages: Beatrice Hoffman, Cynthia Smith, Brenda Tullis, Lisa Desgrosielliers, Laura Hartmark, Laureen Williams, Cindy Fregin, and Christina Risi. Finally, plaintiff named the New York State Department of Labor, Division of Labor Standards, and the State of New York as defendants. Only Brenda Tullis, Joseph Jakubowski, Florio Vitullo and Cynthia Smith answered that complaint. On November 28, 1990, pursuant to Fed. R. Civ. P. 4(j) *fn6" , the court dismissed this action as to Richard Polsinello, Diane Fiano, Michael Java, Lisa Desgrosielliers, Laura Hartmark, Laureen Williams, Cindy Fregin, Christina Risi, and the New York State Department of Labor. Docket entry 11. On December 18, 1990, plaintiff filed a notice of appeal from that order. Docket entry 12. However on April 29, 1991, plaintiff's appeal was dismissed for lack of appellate jurisdiction. Docket entry 19.

 Defendants Jakubowski and Vitullo moved for summary judgment on October 19, 1992, but before considering that motion, on November 24, 1992, the court pursuant to Local Rule 11 dismissed the complaint for failure to prosecute. *fn7" In light of that order, the summary judgment motion by Jakubowski and Vitullo was rendered moot. Docket entry 27.

 Plaintiff then moved to vacate the court's November 24, 1992 order dismissing the complaint. The court granted that motion and on February 5, 1993, the court reinstated the motion for summary judgment by Jakubowski and Vitullo and directed that it be taken on a submit basis. The end result is that there are now only five of the original defendants left in this action: Joseph Jakubowski, Florio Vitullo, Beatrice Hoffman *fn8" ...


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