Matter of Geiger v New York State Dept. of Labor

Matter of Geiger v New York State Dept. of Labor 2015 NY Slip Op 06973 Decided on September 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15720 100296/14

[*1] In re Karl Geiger, etc., et al., Petitioners,

v

New York State Department of Labor, et al., Respondents.

John D. Rapoport, Yonkers, for petitioners.

Eric T. Schneiderman, Attorney General, New York (Haeya Yim of counsel), for respondents.

Determination of respondent New York State Industrial Board of Appeals (IBA), dated January 16, 2014, which, after a hearing, among other things, affirmed respondent New York State Department of Labor's (DOL) orders insofar as they found that petitioners failed to pay an employee overtime wages, failed to furnish true and accurate payroll records, and failed to provide each employee with a complete wage statement with every payment of wages for a certain time period, and insofar as the orders imposed interest and civil penalties for the violations, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Joan B. Lobis, J.], entered May 9, 2014), dismissed, without costs.

IBA's determination is supported by substantial evidence, including the testimony of petitioners' employee and DOL's investigators concerning overtime that was not reflected in petitioners' payroll records (see Matter of Berenhaus v Ward , 70 NY2d 436, 443 [1987]). There is no basis to disturb IBA's credibility determinations (id. ). Although the union contract provided that overtime was required to be authorized, petitioners' testimony indicated an awareness of the apparently unauthorized overtime, which IBA properly found was compensable [*2]to the employee (see Chao v Gotham Registry, Inc. , 514 F3d 280, 288-290 [2d Cir 2008]).

We have considered petitioners' other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK