I filed a claim with NYS Dept. of Labor claim #04-02-0487 against my former
employer for unpaid wages, illegal deductions, returned checks for wages and
reimbursements, and expenses due me. The Dept. of Labor did investigate, and
did find my claim valid and true, and that my former employer did in fact owe me
these monies. The Dept. of Labor informed me they would not seek full damages
due me, they will submit only half my claim to my former employer, my former
employer refused all Dept. of Labor requests, the Dept. of Labor took no action
against my former employer. I never received any notices from the Dept. of
Labor regarding my claim or its standing. I was notified by phone by the Dept.
of Labor that they did obtain a judgement against my employer for the total
amount owed me plus interest and penalties but refuse to execute the judgement.
The Dept. of Labor did not use any of the resources of the State of New York or
its laws to recover my [losses] and damages.
In order to decide this motion, six factors enumerated in the Act must be
considered: whether (1) defendant had notice of the essential facts constituting
the claim; (2) defendant had an opportunity to investigate the circumstances
underlying the claim; (3) the defendant was substantially prejudiced; (4) the
claimant has any other available remedy; (5) the delay was excusable and (6) the
claim appears to be meritorious. The factors are not necessarily exhaustive,
nor is the presence or absence of any particular factor
The first three factors – whether the defendant had notice of the
essential facts, had an opportunity to investigate or would be prejudiced by the
granting of this motion are intertwined and may be considered together. See
Brewer v State of New York,
176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl
1998). In this case, claimant argues that the Department of Labor had the
"ample essential facts" of his claim as it found his claim against his employer
valid. However, while the State may have been aware of Balestire's claim
against his employer, it is undisputed that until the service of this motion on
defendant on April 22, 2003, the State had no knowledge that Balestire was
making a claim against it. It is unclear when Balestire's claim
but even if it was as late as
September of 2002, I find that the notice/opportunity/ prejudice factors of the
Act have not been met in this case.
As to an alternate remedy, as set forth below, it appears that the Department
of Labor is attempting to execute a judgment against claimant's employer. For
an excuse, claimant argues that he was given misinformation by various entities
including the City of New York Court System and the New York Department of
Labor. He does not elaborate on such misinformation other than to say that he
was given the incorrect address for the Court of Claims. In short, he fails to
offer a valid excuse for the purposes of the Act.
The final factor to be considered is merit. With regard to this factor,
defendant explains that claimant initially filed a complaint against his
employer – Long Island Trucking, Inc. -- with the New Jersey Department of
Labor as he had been hired and worked at the company's South Kearny, New Jersey
location. The New Jersey Department of Labor notified claimant that it could
not serve a summons and complaint on Long Island Trucking as the South Kearny
location was closed. The matter was then referred to the New York State
Department of Labor under a reciprocal agreement between New York and New Jersey
as the company had a Lindenhurst, New York office where the employer could be
served. On September 27, 2002, the New York State Department of Labor sent the
company an order to comply and on December 5, 2002, the Department sent a letter
advising the company that legal action would be taken if payment was not made.
See exhibit C to the June 10, 2003 affirmation of Grace A. Brannigan (the
"Brannigan Aff."). According to defendant, on information and belief, the
Department of Labor referred the matter to the New York State Department of Law,
Labor Bureau on January 22, 2003, requesting a judgment against Long Island
Trucking, and such judgment is in the process of being entered in the Suffolk
County Clerk's Office. See ¶8 of the Brannigan Aff.
Despite the allegations in his proposed claim, Balestire concedes in his reply
papers that a judgment against his employer is "in the process of being filed
with the Suffolk County Clerks Office . . ."; his complaint seems to be the
length of time it has taken to pursue his claim as he states "who knows how much
longer this process will take . . ."
Moreover, even if defendant had failed to pursue the claim against Balestire's
employer, no precedent has been found that would permit a cause of action for
money damages in this Court because of such failure. In sum, I find that
claimant fails to meet the standard set forth in Matter of Santana v NYS
Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for
the appearance of merit: (i) the claim "must not be patently groundless,
frivolous or legally defective" and (ii) upon consideration of the entire
record, including the proposed claim and any exhibits or affidavits, "there is
reasonable cause to believe that a valid cause of action exists."
For the foregoing reasons, having reviewed the parties'
, IT IS ORDERED that motion no.
M-66767 be denied.