In the Matter of Guillermon M. Ramirez, et al., petitioners,
Commissioner of Labor of State of New York, et al., respondents. Index No. 21471/11
Simon, Eisenberg & Baum, LLP, New York, N.Y. (Sheldon Karasik of counsel), for petitioners.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Terri Gerstein, Patricia Kakalec, and Christopher Ronk of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review so much of a determination of the State of New York Industrial Board of Appeals dated July 26, 2011, as, after a hearing, modified an order to comply issued by the Commissioner of Labor of the State of New York dated October 7, 2009, finding that the petitioners underpaid employees in violation of Labor Law article 19 and imposing civil penalties, and directed the Commissioner of Labor to adjust the underpayments based on certain recalculations.
ADJUDGED that the determination is confirmed, the amended petition is denied, and the proceeding is dismissed on the merits, with costs.
After a hearing, the State of New York Industrial Board of Appeals (hereinafter the IBA) issued a determination which, among other things, modified an order to comply issued by the Commissioner of Labor of the State of New York (hereinafter the Commissioner), finding that the petitioners underpaid employees in violation of Labor Law article 19 and imposing civil penalties, and directed the Commissioner to adjust the underpayments based on certain recalculations. Contrary to the petitioners' contention, the IBA's determination is supported by substantial evidence (see Matter of Aldeen v Industrial Appeals Bd., 82 A.D.3d 1220, 1221).
The petitioners failed to satisfy their burden of demonstrating that the method used to calculate the amount of underpayments was unreasonable (see Matter of D & D Mason Contrs., Inc. v Smith, 81 A.D.3d 943, 944; 12 NYCRR 65.30). When a petitioner fails to produce complete and accurate records, the Department of Labor is entitled to make just and reasonable inferences and use other evidence to establish the amount of underpaid wages, even though the results may be approximate (see Matter of D & D Mason Contrs., Inc. v Smith, 81 A.D.3d at 944; Matter of Hy-Tech Coatings v New York State Dept. of Labor, 226 A.D.2d 378, 379; Matter of Mid Hudson Pam Corp. v Hartnett, 156 A.D.2d 818, 820). Here, the IBA's finding that the petitioners' employee time cards and weekly payroll sheets did not accurately reflect the hours actually worked by the subject employees was amply supported by the evidence adduced at the hearing. The petitioners' contention that the IBA should have credited the evidence which they produced at the hearing regarding the number of hours worked by each employee is unavailing, inasmuch as " when there is conflicting testimony and questions of credibility, the reviewing court may not weigh the evidence or reject the administrative agency's determination of credibility'" (Matter of A. Uliano & Son Ltd. v New York State Dept. of Labor, 97 A.D.3d 664, 667, quoting Matter of Saitanis Enters. v Hines, 201 A.D.2d 738, 738-739).
Contrary to the petitioners' contention, the civil penalty imposed by the Commissioner of Labor was within the limits set by Labor Law § 218(1), and it was not "so disproportionate to the underlying offense as to be shocking to one's sense of fairness" (Matter of Sarco Indus. v Angello, 23 A.D.3d 715, 717; see Matter of Garcia v Heady, 46 A.D.3d 1088, 1090). In imposing the civil penalty, the Commissioner gave due consideration to the relevant factors (see Matter of ...