Ingvarsdottir v. Bedi

• Decision Date: 01 December 2016
• Docket Number: Index Number : 155571/2016
• Citation: 2016 NY Slip Op 32359 (U)
• Parties: INGVARSDOTTIR, HELGA v. BEDI, VICKRAM A
• Court: New York Supreme Court

2016 NY Slip Op 32359(U)

INGVARSDOTTIR, HELGA v. BEDI, VICKRAM A

Index Number : 155571/2016

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 35

RECEIVED: December 2, 2016

December 1, 2016

NYSCEF DOC. NO. 51

HON. CAROL R. EDMEAD J.S.C.

Sequence Number : 001

SUMMARY JUDGMENT

INDEX NO. __________

MOTION DATE 9/22/16

MOTION SEQ. NO. __________

The following papers, numbered 1 to ___ , were read on this motion to/for __________

Notice of Motion/Order to Show Cause — Affidavits — Exhibits

No(s).__________

Answering Affidavits — Exhibits

No(s). __________

Replying Affidavits

No(s). __________

Upon the foregoing papers, it is ordered that this motion is

In this action arising out of a wage and hour complaint filed by plaintiff with the United States Department of Labor, plaintiff Helga Ingvarsdottir ("plaintiff") moves pursuant to CPLR 3213 against defendants Vickram A. Bedi ("Mr. Bedi") and Datalink Computer Products, Inc. ("defendants") for summary judgment in lieu of complaint based on a final determination by the U.S. Department of Labor on plaintiff's claim for back payment of wages. Plaintiff filed a complaint with the U.S. Department of Labor Wage and Hour Division against Datalink seeking, inter alia, unpaid wages owed to her during her employment in H-1B immigration status. On August 4, 2014, U.S. Department of Labor Administrative Law Judge Lystra Harris ("ALJ Harris") issued a Decision and Order ("ALJ Decision") holding that defendants were liable to plaintiff for back wages, plus pre-judgment interest. The plaintiff's appeal to the Administrative Review Board (the "Board") of the ALJ Decision was affirmed on February 29, 2016 (the "Board Decision"), except for decreasing the wages to be paid to plaintiff by three days. Plaintiff contends that defendants have not sought review of the Board Decision within time periods set forth in 28 USC §2107, and the time to seek review of such Decision expired on April 29, 2016. No motion for reconsideration is pending with the Board. Thus, the Board Decision is final and defendants are collaterally estopped from opposing the Decision. Plaintiff is therefore entitled to judgment and statutory interest on the Judgment pursuant to CPLR 5004.

In response, defendants oppose the motion, arguing that their time to seek judicial review of the Order by the United States District Court is not exhausted. Defendants' time to seek such review of the Order is subject to a six-year statute of limitations pursuant to 28 USC §2401 from February 29, 2016 when the Board issued its determination. Thus, collateral estoppel is inapplicable. Further, defendants cross move pursuant to CPLR 5015, 317 and 2221 to vacate this Court's August 9, 2016 restraining and disclosure order. By this order, the Court granted plaintiff's order to show cause "without opposition," to restrain defendants from, inter alia, transferring any property in which they had an interest, and compelling defendants to disclose to plaintiff all of its assets in order to satisfy the judgment sought in this action. Mr. Bedi's reasonable excuse for his default is based on the fact that he has been incarcerated at a New York State correctional facility since the inception of this action, and did not receive notice of plaintiff's order to show cause until after his papers were due. And, Mr. Bedi's meritorious defense is based on the fact that restraining relief under CPLR §§5222, 5223, and 5229 is only available where there is a judgment, and the Decision and Order is not a final judgment subject to these provisions.

In reply, plaintiff argues that defendants' interpretation of the statute of limitations is incorrect. In any event, defendants are obligated to immediately pay the moneys owed ordered by the US Department of Labor. Otherwise, defendants were required to seek a stay of the Decision from the Board or the US District Court, which they have failed to do. Once the ALJ's order is affirmed, it is enforceable and there is no automatic stay if the losing party seeks judicial review of the Board's Decision. And, defendants are unlikely to demonstrate they will suffer irreparable injury in the absence of a stay, given that their harm is solely the mere payment of money and the public interest favors the recovery of wages for workers. Further, under CPLR 5302, a judgment may be final when rendered even though an appeal of the judgment is pending. And under CPLR 5303, a foreign country judgment is enforceable, thereby entitling plaintiff to the entry of judgment.

In further support of defendants' cross-motion and response to plaintiff's reply papers, defendants argue that the Board Decision is still subject to review and thus, cannot be used as an instrument in support of CPLR 3213 relief or in support of the disclosure and restraining motion previously submitted by plaintiff. Plaintiff does not rebut these arguments, and raises a new argument to domesticate a "foreign" judgment, which does not apply to the Board Decision.

Discussion

CPLR §3213 provides the following: "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint." "A plaintiff moving under CPLR §3213 must demonstrate that the claim is based on a judgment or an instrument itself and proof of non-payment according to its terms (Imbriano v Seaman, 189 Misc 2d 357, 358-359 [NY Dist Ct 2001], citing Seaman-Andwall Corp. v Wright Machine Corp., 31 AD2d 136 [1st Dept 1968]). It has been held that "an 'instrument' has been generally defined as "... [a]nything reduced to writing, a document of a formal or solemn character, a writing given as a means of affording evidence. A document or writing which gives formal expression to a legal act ... for the purpose of creating [and] securing ... a right ..." (Maldonado v. Man-Dell Food Stores, 178 Misc. 2d 541, 679 N.Y.S.2d 787 [Civil Court, New York County 1998] citing Black's Law Dictionary 801 (6th ed. 1990)).

As relevant herein, the Immigration and Nationality Act ("INA"), 8 U.S.C.A. § 1182(n), sets forth the requirements of the H-1B visa program to admit aliens into the United States toperform services in a specialty occupation that meet specific requirements of the Act (Gupta v. Headstrong, Inc., 2013 WL 4710388 [SDNY 2013]; Gupta v. Perez, 101 F.Supp.3d 437 [DC NJ 2015]). Section 1182(n) "contains a comprehensive regulatory enforcement scheme that provides for the investigation of claims and for remedies" tailored to the specific relief sought (Shah v. Wilco Sys., Inc., 126 F. Supp. 2d 641, 647 [SDNY 2000]). The Secretary of Labor (the "Secretary"), under the authority of Section 1182(n) of the INA, has established extensive administrative regulations that govern the enforcement of this Section (see 20 C.F.R. §§ 655.800-655.855).

Pursuant to Section 1182(n)(2), an aggrieved party, such as plaintiff, "must file a complaint with the Wage and Hour Division of the DOL, which then makes a determination regarding the validity of the complaint (Gupta v. Headstrong, Inc., supra citing 8 U.S.C.A. §1182(n)(2); 20 C.F.R. §§ 665.805, 655.815). "If the party is dissatisfied with this determination, [the party] may request a hearing before an administrative law judge. Thereafter, any party may petition for review by the DOL's Administrative Review Board, whose decision in turn may be appealed to the appropriate Untied States District Court" (Gupta v. Headstrong, Inc., supra citing 20 C.F.R. §§ 655.840, 655.845, 655.850); Biran v. JP Morgan Chase & Co., 2002 WL 31040345 [SDNY 2002] (emphasis added)). Notably, the Code of Federal Regulations, 20 C.F.R. § 655.850, also provides that, upon "receipt of a complaint seeking review of the final agency action in a United States District Court, the Chief Administrative Law Judge shall certify the official record and shall transmit such record to the clerk of the court" (see also, Venkatraman v. REI Systems, Inc., 417 F. 3d 418 [4^th Cir 2005] (noting that the C.F.R. "contemplate review of the final agency action in the district courts § 655.850") (emphasis added)).

Under the Administrative Procedure Act ("APA"), "[a] person suffering legal wrong because of agency action, [as defined in 5 U.S.C. § 551(13)], or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" (5 U.S.C. § 702; see also Hsing v. Usery, 419 F. Supp. 1066, 1070 [W.D. Pa. 1976] (finding that the APA provided jurisdictional basis for the plaintiff to bring the suit in district court based on an allegation that defendant violated 8 U.S.C. § 1182(a)(14)). An agency action is subject to judicial review only when it is a "final agency action" (5 U.S.C. § 704). Specifically, an aggrieved party may seek judicial review of an agency action "when 'the agency has completed its decisionmaking process, and [when] the result of that process is one that will directly affect the parties'" (Franklin v. Massachusetts, 505 U.S. 788, 797 [1992] (internal citations omitted)). Under 28 U.S.C. § 2401, a party challenging the final decision of an agency must do so "within six years after the right of action first accrues" (28 U.S.C.A. § 2401). The action first accrues "on the date of the final agency action." (Harris v. FAA, 353 F.3d 1006, 1009-10 [D.C. Cir. 2004]; see also Felter v. Kempthorne, 473 F.3d 1255, 1259 [D.C. Cir. 2007]; Friends of Tims Ford v. Tennessee Valley Auth., 585 F.3d 955, 964 [6th Cir. 2009]; Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 186 [4th Cir.1999]).

Here, the ALJ issued a decision under the INA in favor of the plaintiff, which the Board affirmed. The affirmance of the ALJ's decision by the Board is a final agency action because there are no further administrative remedies available to the parties. Under the APA, the final decision of the Board is subject to...