NATURE OF THE ACTION

Plaintiff commenced this action by filing a Summons and Complaint on December 21, 2006. Plaintiff alleged that he was an employee of the Defendant, was promised a salary of One Thousand Dollars ($1,000.00) weekly to do construction and related work for Defendant, and was owed Twenty One Thousand Dollars ($21,000.00) in unpaid wages. Defendant answered the complaint and alleged that Plaintiff was guilty of unclean hands and that Plaintiff was paid in full for his services. The action was transferred, pursuant to NY Civ, Pract. Law & Rules §325(d), to this Court for Trial without a Jury.

Plaintiff met an individual named Alejandro at the local train station. Alejandro was working at Defendant's house and offered Plaintiff employment. Alejandro told Plaintiff he would earn $1,000.00 [*2]weekly. Defendant was not present, but he later met Defendant that day after he started working. Plaintiff received his working chores from Alejandro. Defendant did not speak Spanish, so any communication between Plaintiff and Defendant occurred through Alejandro. From April through August 2005, when the work was mostly gardening and landscaping, Plaintiff was paid cash for his work with money Defendant gave to Alejandro. Only occasionally did Plaintiff receive a check from Defendant. In September, Plaintiff began work remodeling the Defendant's house. He worked without knowing how much he was to be paid for this new work. However, the more work Plaintiff accomplished, the more he was paid. He would earn up to $1,000.00 weekly. Alejandro directed Plaintiff to keep a record of his hours. Between September 2005 and February 6, 2006, Plaintiff continued to work despite not being paid weekly. In September he worked every week, but was paid for two; he was paid only for one week in each of October and November, and he was never paid in December although he worked every day. Plaintiff then received $2,000.00 in January, and $1,000.00 in February.Plaintiff complained to Defendant on more than one occasion. He claimed that Defendant promised to pay Plaintiff when he got the money, and that Defendant was in the process of refinancing the home to obtain the funds. Plaintiff never received the money. Twice, Alejandro gave Defendant's credit card to Plaintiff to buy food for the workers. Plaintiff always returned the credit card to Alejandro. In March 2006, Plaintiff's son became ill, and Plaintiff missed work when he took his son to the hospital. Plaintiff did not have health insurance.The Parties entered into evidence a document which the hospital required to determine Medicaid eligibility. The document was captioned "Letter from Employer." It stated

I certify that Santiago Cedillo works for me and earns $400.00 per week/bi-weekly/monthly in gross wages (before taxes.)"

When confronted with the hospital's "Letter from Employer" Defendant admitted signing it. He maintained that Plaintiff told him what amount to insert for salary. He kept no records of what he paid Plaintiff, nor what days Plaintiff worked. Defendant explained that he originally hired Alejandro as a gardener. He did not direct Alejandro to hire other people, but Alejandro did have people helping him. Plaintiff worked for Alejandro. Yet, in his affidavit which accompanied his Motion to Dismiss, Defendant averred that

"I did hire him to perform various home repairs and improvements at the premises. He always acted on his own and was never associated with any of the other contractors performing work at the premises."

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence with the same burden imposed upon the Third-party Plaintiff respecting his claim against the Third-party Defendant. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Under the doctrine of falsus in uno, falsus in omnibus, the law permits the Court to disregard completely the entire testimony of a witness who has wilfully testified falsely about any material fact upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything.

Suffolk County Code, Chapter 345, sets forth licensing requirements within the County. In pertinent parts it states, in §345-3 A, that

It is unlawful for any person, other than those exempt under the provisions of § 345-4, to engage in any business in the County regulated by this chapter without obtaining a license therefor from the Office in accordance with and subject to the provisions of this chapter.

A contract entered into after one year after the effective date of the appropriate article of this chapter by a person who engages in a business regulated by this chapter, who on the date of the contract does not possess a valid license to engage in such business, is unenforceable by him and voidable at the option of any other party to the contract rendered or to be rendered to such party. Nothing contained herein shall be construed to prevent any other party to the contract from enforcing its terms. [emphasis added]

Maintenance work by bona fide employees in an industrial, commercial, institutional or other such establishment within the building or property limits of the employer unless provided otherwise pursuant to this chapter or regulations promulgated hereunder.

The Court must first question why neither party called Alejandro to testify? Had this been a trial by jury it would have been ripe for a missing witness charge against each party. That aside, this Court finds the testimony of both parties incredible. On one hand, the Plaintiff seeks payment of $1,000.00 per week for work performed at Defendant's home. Yet, Plaintiff walked into Court with a document he used to obtain Medicaid insurance for his son which reflected [*4]that he earned only $400.00 per week. On the other hand, Defendant claimed that he did not hire Plaintiff, but that Plaintiff worked for Alejandro. Yet, Defendant signed that document for the hospital, which was intended to obtain Medicaid insurance for Plaintiff's son, and stated that Defendant was the employer. Defendant also stated in his affidavit supporting his Motion to Dismiss that he "did hire [Plaintiff] to perform various home repairs and improvements at the premises, and that [Plaintiff] always acted on his own and was never associated with any of the other contractors performing work at the premises." In this Court's opinion, both parties came to Court with unclean hands.

First, the restrictions of Suffolk County Charter, §345, are inapplicable herein. Defendant admitted that he was Plaintiff's employer in both the letter to the hospital and his prior affidavit. Persons doing work for an employer within the property limits of the employer are exempt from licensing requirements. There was no testimony that the Plaintiff did any work outside of the Defendant's property limits.

Next, Plaintiff is limited by his letter of employment to $400.00 per week, not $1,000.00 per week as claimed.

Lastly, calculating damages was aided by the parties stipulation. The parties stipulated that the Plaintiff's claim was $20,947.00. Based upon $1,000.00 per week, Plaintiff sought unpaid wages for 20.9 weeks. Holding that the Plaintiff was limited by his insurance letter to wages of $400.00 per week, Plaintiff's claim is reduced to $8,360.00. Proof was submitted that Plaintiff was paid $7,750.00 for that period. Accordingly, Plaintiff is entitled to the difference, as and for unpaid wages, in the amount of $610.00. The Court leaves it to Defendant to deduct the appropriate withholding taxes, and file the appropriate amendments for W-2 reports, workers compensation, unemployment insurance, and such other requirements for the 2005 and 2006 tax years as was required by the New York State and Federal governmental agencies. Interest shall accrue from date of judgment.

Submit Judgment.

This constitutes the decision and order of the Court.

ENTER

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Judge