Thursday, November 13, 2008
The Court Report
By Richard Blassberg
Developer Buddy Of Yonkers Mayor Amicone,
Hauled Into Federal Court, May Go Bust
In the May 29, 2008 edition of The Guardian, the front page story entitled, “Connected Developer Joe Spiezio Calls His Latino Workers Spics And Steals eir Wages”, informed readers of a federal lawsuit filed by some 20 Latino workers, employees of Yonkers developer Joe Spiezio, charging Spiezio, his accountant and his bookkeeper with violations of the Federal Fair Labor Standards Act, as well as New York State Labor Law.
Spiezio was specifically charged with a number of intentional unlawful acts, including violation of Wages And Hours Laws, as well as failing to pay overtime wages “for work in excess of 40 hours per week” as well as “periodically requiring work on Sundays without compensation at all.” In addition, the Summons and Complaint led by civil rights attorney Jonathan Lovett, of White Plains, alleged that Spiezio appropriated, in cash, for his own benefit, 20 percent of the wages paid to all of the Latino manual laborers and carpenters on the false representation that it was for “taxes to be withheld for, and paid by, Defendants to federal, state and Yonkers tax authorities.” In actuality, that money, beginning in 2000, was stolen
and not paid to any taxing authority.
Questioned by reporters as to why his clients had not come forward sooner, Attorney Lovett indicated that they had, and that former District Attorney Jeanine Pirro was notified, and “couldn’t care less,” and that Janet DiFiore, her successor, also refused to act on the matter.
Th e article pointed out the fact that Spiezio enjoys “a very cozy relationship” with Yonkers Mayor Phil Amicone, receiving special treatment, together with an $800,000 loan from the City which had not been repaid.
The matter is in pre-trial proceedings before Federal Judge Stephen C. Robinson, United States District Court, White Plains. Now, within the last couple of weeks, a stunning decision has been handed down by Magistrate Judge Michael H. Dolinger of the United States District Court in Manhattan in a case brought by 36 food delivery workers against four Saigon Grill Restaurants in Manhattan, charging, amongst other violations,
“blatant and intentional violation of Minimum Wage And Overtime laws.”Addi-tionally, the Defendant restaurant owners, Simon Nget and his wife, Michelle, compelled the 36 deliverymen to purchase and maintain “tools of the trade”, to wit, bicycles and motorbikes, in order to be employed, and like the Spiezio case, would illegally deduct $20-$200 from the workers as “ fines” for one infraction or another; trivial actions such as permitting a door to slam shut.
The Saigon Grill case spans virtually the same time frame as the violations alleged against developer Joe Spiezio, 1999-2007. The Plaintiffs in the Saigon Grill action, 36 in all, are all Chinese nationals from Fujian Province with little formal education and lacking proficiency in English, whereas the Plaintiffs in the Spiezio action come from Mexico, Ecuador, and El Salvador, also lacking English-speaking skills.
The Saigon Grill decision, which calls for $4.6 million in back pay and damages, would appear to be controlling in the Spiezio action, particularly coming as it does from the same Circuit and aligning virtually on all four points with respect to the nature of the allegations, the circumstances and situation of the Plaintiffs and Defendants, vis-à-vis one another, the applicable state and federal statutes, and the available remedies.
Specifically, the actions of Joe Spiezio, with respect to his carpenters and laborers, in many ways would appear to mirror the allegations established against the owner/operators of the Saigon Grill. And, it is unlikely that Spiezio will find any comfort, or relief, in the applicable statute of limitations given his reckless disregard for legal requirements; his attempted, and actual, deceiving of Plaintiffs with respect to deductions of 20 percent of their wages, supposedly for payment of federal, state and municipal taxes.
Under the circumstances alleged, if documented by Plaintiffs, equitable tolling may very well be used by the Court to dispense with the two-year statute of limitations altogether, given the fact that the Latino immigrant Plaintiffs were unaware of their cause of action, and Spiezio’s efforts, intentionally, to conceal the existence of such cause.
Additionally, nearly all of the allegations successfully brought against the Saigon Grill under the Fair Labor Standards Act (FLSA), and the New York State Labor Law, are likewise claimed against employer/developer Joe Spiezio:
• Failure to pay minimum wage;
• Failure to pay taxes;
• Unlawful deductions from wages;
• Failure to check for work, or citizenship, papers;
• Failure to pay overtime; and,
• Failure to post minimum wage or other employee information.
Analysis:
It would appear that Yonkers developer Joe Spiezio and his co-defendants are in a very vulnerable position with regard to the federal action brought against them in May of this year by some 20 Latino carpenters and laborers, previously in their employ, given the Decision and
Order handed up by Federal Magistrate Judge Michael H. Dolinger in the Saigon Grill case within recent weeks.
Simoes In Court For Pre-Trial Readiness
United States District Court,
300 Quarropas St., White Plains
Judge Kenneth M. Karas Presiding
Last Monday morning, November 3rd, Yonkers Police Officer Wayne Simoes returned to United States District Court, White Plains, for a pre-trial status hearing before Judge Kenneth M. Karas. Simoes, was indicted by a federal grand jury August 19, 2008, for one count of Willfully Depriving Irma Marquez Of Her Rights Secured Under The United States Constitution, the right to be free from the use of excessive force by a law enforcement officer in the course of an arrest, stop, or seizure.
The indictment grew out of the unwarranted action by Simoes in the early morning hours of March 3, 2007, when Simoes, together with several
other Yonkers police officers, responded to a bar and grill on Palisade Avenue in downtown Yonkers where Marquez, 47, and her niece had been
imbibing in alcoholic beverages. The niece had been struck over the head with a bottle by another patron, rendering her unconscious on the floor.
Simoes, appearing only slightly less grave than in his prior appearance, was accompanied by lead attorney Andrew Quinn, as well as attorney
John Patton. Quinn has represented a number of Westchester police officers, most recently gaining an acquittal, on all counts, for former Mount Kisco police officer George Bubaris, charged with Manslaughter by the Westchester County District Attorney in the death, last year, of Guatemalan homeless immigrant Rene Perez. Attorney John Patton is still involved, together with attorney Ben Epstein, in the criminal defense
of former Westchester Correction Officer Paul Cote, whose conviction last year, by a federal jury, was overturned by the late Judge Charles L. Brieant as inconsistent with the evidence, but which, however, was reinstated by a three-judge panel of the Second Circuit Court of Appeals.
Lead Prosecutor, Assistant United States Attorney Anna Skotko, told the Court that her office had provided Defense counsel with numerous items
of discovery, including the video surveillance tape, a brief segment of which shows Simoes grabbing and body-slamming Ms. Marquez, face-first, to the floor of La Fonda, the bar and grill.
In addition to the compelling videotape, Skotko informed the Court that she had also turned over the initial Yonkers Police Department Internal Affairs Report, Simoes’ personnel file, Marquez’ medical information and the transcript of Marquez’ criminal trial in May, from which she was acquitted on all counts. Additionally, the Defense was given a tape of the 911 emergency call from the scene as well as photos. Simoes has been on modified duty since his indictment and arrest, despite having been cleared of any wrongdoing by Yonkers Police Internal Investigation. Wayne Simoes’ conduct, in addition to other significant Yonkers Police brutality which have gone unchecked and unabated for many years by numerous City administrations, brought on the current FBI investigation of the Yonkers Police Department over the past 18 months.
Given the substantial volume of discovery materials turned over to Defense by Assistant United States Attorneys Anna M. Skotko, Jason P. W. Halperin, and Benjamin H. Torrance, Defense attorney Andrew Quinn asked Judge Karas for a four-week adjournment to allow the Defense team an opportunity to review all of it, and, to “decide whatever motions should be filed.”
Judge Karas, having been advised that the Government had no objection, acknowledged Quinn’s request, stating, “Why don’t we plan on getting
back together again on December 4th at 12 noon?” Upon leaving the courthouse, Attorney Quinn told reporters, “The video doesn’t tell the whole story.” He tipped his Defense strategy a bit, indicating that it had been his belief, right along, that his client hadn’t meant to inflict injury to Ms. Marquez; and, that what he had seen of the evidence merely confirmed that belief. Of course, the Government will need to convince a jury of the officer’s peers, that it was his intent to bring about the harm he, in fact, inflicted if they are to convict him as charged.
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