SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

593 

TP 13-02121 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF STEVEN MARCHIONDA AND 

INTERNATIONAL GROUP, LLC, PETITIONERS,

V MEMORANDUM AND ORDER

INDUSTRIAL BOARD OF APPEALS OF STATE OF NEW 

YORK, DEPARTMENT OF LABOR, RESPONDENT. 

 

HANDELMAN, WITKOWICZ & LEVITSKY, LLP, ROCHESTER (STEVEN M. WITKOWICZ

OF COUNSEL), FOR PETITIONERS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KEVIN M. LYNCH OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Monroe County [William P.

Polito, J.], dated November 27, 2013) to review a determination of

respondent. The determination, among other things, imposed a civil

penalty against petitioners. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioners commenced this CPLR article 78

proceeding challenging respondent’s determination that their former

employee was entitled to payment for vacation time that was accrued

but unused at the time of the employee’s termination. Contrary to

petitioners’ contention, the payroll records they submitted in

response to a request from the Department of Labor did not comply with

the statutory requirement that “[e]very employer shall . . .

establish, maintain and preserve for not less than three years payroll

records showing the hours worked, gross wages, deductions and net

wages for each employee” (Labor Law § 195 [former (4)]; see also

former § 661). At the administrative hearing, petitioners contended

that their former employee was not entitled to vacation pay because

she had no unused vacation time, but the Department of Labor presented

evidence that the former employee had not used all of her vacation

time because she had worked extra hours to make up the time for her

absences. The payroll records provided by petitioners did not include

any information concerning the wages paid to their former employee,

and such information was material to the issue under consideration at

the administrative hearing. “In view of the petitioners’ failure to

produce complete and accurate records, [respondent] was entitled to
-2- 593 

TP 13-02121 

make just and reasonable inferences and use other evidence to

establish” whether petitioners’ employees were permitted to work extra

hours in order to make up time for any absences that were not

attributed to accrued vacation time (Matter of D & D Mason Contrs.,

Inc. v Smith, 81 AD3d 943, 944, lv denied 17 NY3d 714; see generally

Matter of Ramirez v Commissioner of Labor of State of N.Y., 110 AD3d

901, 901-902; Matter of Angello v National Fin. Corp., 1 AD3d 850,

854). 

We further conclude that respondent’s determination that the

former employee was entitled to payment for her unused vacation time

is supported by substantial evidence, i.e. “such relevant proof as a

reasonable mind may accept as adequate to support a conclusion or

ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights,

45 NY2d 176, 180). 

Contrary to petitioners’ further contentions, respondent “is

obligated to impose interest at the statutory rate” (Matter of Garcia

v Heady, 46 AD3d 1088, 1090, lv denied 10 NY3d 705; see Labor Law §

219 [1]; Banking Law § 14-a [1]), and “the civil penalty imposed . . .

was within the limits set by Labor Law § 218 (1), and . . . was not

‘so disproportionate to the underlying offense as to be shocking to

one’s sense of fairness’ ” (Ramirez, 110 AD3d at 902; see Garcia, 46

AD3d at 1090).

Entered: July 3, 2014 Frances E. Cafarell

Clerk of the Court