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ABDRABO v. STATE OF N.Y.-WORKER COMPENSATION BD.

June 21, 2004.

MOHAMED ALI ABDRABO, Plaintiff,
v.
STATE OF N.Y.-WORKER COMPENSATION BD., FOWAD TRADING CO., INC., Managing by Mr. Fouad Mohamed Al Eshmawi, and AMERICAN MOTORIST INSURANCE COMPANY, C/O the Kemper National Insurance Company, Defendants.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION & ORDER

Defendants American Motorist Insurance, Co., ("AMIC") and FOWAD Trading Co, Inc. ("FOWAD") have filed motions for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons set forth below, AMIC's motion is granted and FOWAD's motion is granted in part. Background

  On September 30, 2003, pro se plaintiff Mohamed Ali Abdrabo ("Abdrabo") filed a complaint against the New York State Workers' Compensation Board ("WCB"), FOWAD, and AMIC. On December 12, defendant WCB filed a motion to dismiss the claims filed against it on the grounds that the WCB was immune from suit in federal court under the Eleventh Amendment and that plaintiff failed to state a claim against it. At an initial conference on January 22, 2004, WCB's motion to dismiss was granted. On February 24, both AMIC and FOWAD filed motions for judgment on the pleadings.*fn1

  Abdrabo's complaint states that he was employed as a security guard by FOWAD at its store located at 2554 Broadway, New York, New York, during the period January 1, 1992 through December 21, 1998. In April 1994, Abdrabo developed a left inguinal scrotal hernia while lifting a heavy box at work. Plaintiff immediately notified FOWAD of his injury. After the hernia became enlarged in 1995, plaintiff went to Roosevelt Hospital and his injury was diagnosed. Plaintiff continued to work at FOWAD until December 21, 1998, at which time he went to Roosevelt Hospital and was referred to a specialist for surgery.

  After FOWAD refused to execute the necessary documentation for payment of plaintiff's surgery, plaintiff consulted an attorney and filed a worker's compensation claim with the WCB in or around January 1999. In this claim, AMIC was identified as the workers' compensation carrier for FOWAD. Plaintiff was hospitalized due to a strangulation of his hernia from July 29 to August 3, 1999.

  In March 2000, a WCB judge found that plaintiff's worker's compensation claim was untimely filed. Plaintiff again consulted with his lawyer and decided to appeal WCB's decision. Abdrabo's attorney, however, filed an untimely appeal, 75 days after the WCB decision, rather than within the thirty day appeal period. The WCB's three member Appeals Board denied the appeal as untimely.

  Plaintiff made several efforts to re-open his case with the WCB, contending that his injury was a repetitive trauma which developed over the course of his employment and thus was not time-barred. On April 24, 2002, the WCB issued an Amended Memorandum of Decision which upheld the earlier denial of plaintiff's worker's compensation claim as untimely and provided a detailed explanation of the basis for the ruling.

  Abdrabo has also brought at least six actions, each for no more than $3,000.00, for non-payment of wages and benefits in New York County Civil Court Small Claims Part.*fn2 The first claim, Index No. 1442/2001, was for FOWAD's alleged deduction of Abdrabo's salary when he took lunch breaks. This action resulted in a stipulation of settlement between the parties on April 17, 2001, wherein FOWAD paid Abdrabo $1,500.00.

  The second claim, Index No. 4301/2001, was for instances in which the defendant allegedly deducted money from Abdrabo's pay for the purposes of paying Abdrabo's income tax. This action resulted in a default judgment against FOWAD for $3,712.50 issued on August 29, 2001.

  The third claim, Index No. 5863/2001,*fn3 was for pay that FOWAD owed Abdrabo for days in which Abdrabo was told not to come into work because of inclement weather. This action resulted in a default judgment against FOWAD for $3,825.00 issued on February 2, 2002.

  The resolution of the remaining three claims is not clear from the parties' submissions. The fourth claim, Index No. 1249/2002, sought the remaining damages of the first claim on the ground that Abdrabo had been tricked into settling the first claim for less than the full amount of the claim. The fifth claim, Index No. 1692/2002, was for failure to pay Abdrabo a promised bonus. The sixth claim, Index No. 2533/2002, was for money Mr. Fouad Mohamed Al Eshmawi ("Al Eshmawi"), the alleged owner and manager of FOWAD, took out of Abdrabo's salary in order to make a contribution to Al Eshmawi's mosque.

  FOWAD eventually moved to vacate an unspecified number of the default judgments entered against it in New York County Court. In a September 17, 2002 Decision/Order ("Decision/Order") relating to Index No. 5863/2001, the New York County Court apparently consolidated several of Abdrabo's other claims and vacated certain of the default judgments. The parties' submissions do not describe precisely which of Abdrabo's claims the New York County Court consolidated and which default judgments were vacated. The only document submitted to this Court relating to claims adjudicated by the Decision/Order was an incomplete copy of the one-page, handwritten decision.*fn4 The Decision/Order, however, dismissed with prejudice Abdrabo's claim(s) stating that his claims for unpaid benefits or wages arising out his employment with FOWAD were "settled or are barred." There is no evidence of any appeal from that ruling.

  Allegations against Fowad and AMIC

  Abdrabo's complaint lists five causes of action against the three named defendants. The complaint centers on the alleged wrongdoing on the part of the WCB and Abdrabo's lawyer in the proceedings before the WCB. With respect to AMIC, Abdrabo claims that it conspired with the WCB to deny him compensation. Abdrabo also seems to allege that AMIC was obligated to provide him with temporary compensatory benefits after he filed his claim with the WCB regardless of whether the WCB ultimately awarded him damages. Lastly, Abdrabo claims that AMIC is jointly liable for the damages he seeks against all parties. With respect to FOWAD, Abdrabo's claims can be characterized as a failure to pay wages and benefits. More specifically, Abdrabo contends that FOWAD, through the actions of its owner and manager, Al Eshmawi, violated the Fair Labor Standards Act ("FLSA")*fn5 by forcing him to work seven days a week, ten hours a day, with no allotment of sick or vacation days, and that FOWAD failed to pay Abdrabo his agreed upon salary, and failed to pay him the minimum wage and overtime. Abdrabo also contends that FOWAD, through the actions of Al Eshmawi, promised to pay for his hernia operation and actively encouraged him to ...


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