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Pascazi v. Rivera

United States District Court, S.D. New York

February 26, 2015

MICHAEL S. PASCAZI, Plaintiff,
v.
PETER M. RIVERA in his official capacity as NEW YORK STATE COMMISSIONER OF LABOR, Defendant.

OPINION & ORDER

NELSON S. ROMN, District Judge.

Attorney Michael S. Pascazi ("Pascazi") brings this lawsuit prose to enjoin enforcement of two administrative orders against him. Defendant Peter M. Rivera, New York State Commissioner of Labor (the "Commissioner") moves to dismiss on the grounds ofres judicata and failure to state a claim upon which relief may be granted. For the following reasons, the Commissioner's motion to dismiss is GRANTED.

BACKGROUND[1]

Pascazi brings this action to enjoin the enforcement of two administrative orders (the "Determinations") finding that his company, Fiber Optek Interconnect Corp. ("Fiber Optek"), willfully violated New York's Prevailing Wage Law, N.Y. Labor Law Art. 8, §§ 220-224 (the "PWL"). (Def.'s Mem. at 1, ECF No. 19.)

Pazcazi was the president and 50% owner of Fiber Optek at all relevant times prior to its dissolution.[2] Fiber Optek performed cable installation work on both private projects and public work projects. In 1999 and 2001, one or more Fiber Optek employees complained to the Bureau of Public Work (the "Bureau") of the New York Department of Labor (the "NYDOL") about their wages for public work projects, prompting the Bureau to commence an investigation into whether Fiber Optek had violated the PWL with respect to eight projects. (Kupferberg Decl. Ex. A app. at 12-13, ECF No. 18-1 [hereinafter Determination 1]; Kupferberg Decl. Ex. B app. at 3-4, ECF No. 18-2 [hereinafter Determination 2].)

At the conclusion of the investigation, two hearings were conducted. (Determination 1 app. at 1-3; Determination 2 app. at 1-4.) The first hearing focused on one project and took place on seven hearing days between September 17, 2003 and December 15, 2003. (Pl.'s Opp. at 4, ECF No. 22.) The second hearing focused on all eight projects and took place on 16 hearing days between August 7, 2006 and March 10, 2010. (Id. ) Pascazi personally appeared at the hearings, presented evidence, and submitted post-hearing written argument. (Determination 1 app. at 3; Determination 2 app. at 2.)

Prior to the conclusion of the hearings, Pascazi filed two actions in the Southern District of New York to enjoin the NYDOL proceedings, see Fiber Optek Interconnect Corp. v. N.Y.S. Comm'r of Labor, No. 03-cv-7374 (S.D.N.Y. filed Sept. 19, 2003); Pascazi v. Angello, No. 04-cv-8896 (S.D.N.Y. filed Nov. 10, 2004), one of which he appealed to the Second Circuit, see Pascazi v. Angello, No. 06-5108-cv (2d Cir. filed Nov. 3, 2006), and a lawsuit in New York Supreme Court for a judgment in the nature of prohibition, see Fiber Optek Interconnect Corp. v. N.Y.S. Comm'r of Labor, Index No. 5942/2003 (N.Y. Sup.Ct. filed Dec. 3, 2004). Also during the pendency of the proceedings, Pascazi caused Fiber Optek to go into bankruptcy, see In re Fiber Optek Interconnect Corp., No. 05-30045-cgm (Bankr. S.D.N.Y. filed Feb. 16, 2005), and moved the bankruptcy court to hold the NYDOL in contempt for continuing with the administrative hearings purportedly in violation of the automatic bankruptcy stay, see In re Fiber Optek Interconnect Corp., Nos. 09-cv-8827, 09-cv-9123, ECF No. 13 (S.D.N.Y. Sept. 28, 2010). All of Pascazi's attempts to delay or enjoin the administrative hearings failed.

The Determinations found that Fiber Optek had paid workers less than the applicable prevailing wages on seven of the eight[3] projects in violation of the PWL. (Determination 1 app. at 23-25; Determination 2 app. at 14.) Accordingly, the Determinations found Fiber Optek liable for the total amount of unpaid wages on certain projects, plus statutory interest at 16% from the date of each underpayment. (Determination 1 app. at 23-25; Determination 2 app. at 14.) The Determinations also found that Fiber Optek's violation was "willful" because the Bureau advised Pascazi personally of the proper employee classifications and applicable wage rates, but Pascazi disregarded the advice. (Determination 1 app. at 11.) It was further established that Fiber Optek's certified payroll records falsely reported a rate that was different than the rate actually paid to individuals. (Id. app. at 19.) The Determinations found that Pascazi managed the offices and books of Fiber Optek, made hiring and firing decisions, set workers' pay rates, and was responsible for verifying the accuracy of time cards. (Id. app. at 10; Determination 2 app. at 6-7.)

At the conclusion of the administrative proceedings, Pascazi initiated a proceeding under Article 78 of the New York Civil Practice Law and Rules ("CPLR") to review the Determinations (the "Article 78 proceeding"). See Pascazi v. Gardner, 966 N.Y.S.2d 528 (App. Div.), appeal dismissed, 996 N.E.2d 907 (N.Y. 2013). Pascazi raised a wide range of arguments at the Article 78 proceeding including that:

• the federal Telecommunications Act preempts the PWL;
• Pascazi was denied a constitutional right because the FCC was the only tribunal that could hear his preemption argument based upon the Telecommunications Act;
• the federal Labor Management Relations Act (the "LMRA") preempts the PWL;
• the PWL violates the Dormant Commerce Clause;
• Pascazi did not receive due process because the hearing officer purportedly applied a "substantial evidence" standard;
• Pascazi did not receive due process because the hearing officer was substituted;
• there was insufficient evidence to support the Determinations;
• the proceedings were untimely;
• the interest award was arbitrary and capricious because the Determinations failed to set forth precise calculations;
• certain projects were nonpublic projects to which the PWL ...

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