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September 23, 2019Cart

Business

by Westchester County Business Journal
by WCBJ

Former Tenampa Restaurant cook seeks backpay in bankruptcy action

For five years, Leonor Toledo has been trying to get her former employer to pay unpaid wages she claims she was denied.

Toledo worked for nearly seven years at Tenampa Restaurant, Croton-on-Hudson, cooking, cleaning and washing dishes. She says she worked 11 to 13 hours a day, six days a week, totaling 72 hours, and was paid as little as $1.74 hour, and never paid the $7.25 minimum wage or overtime.

Toledo sued Luis A. Alvarez, who she claims was an owner of the restaurant, on Feb. 9 in federal bankruptcy court, Poughkeepsie.

Alvarez responded in court filings that he is neither an officer nor owner of the restaurant, maintaining that it is owned by his brother, Jose “Paco” Alvarez, and that Luis had nothing to do with Toledo’s employment. Luis also demanded that Toledo pay his legal fees.

Toledo worked at Tenampa from 2006 to 2013. Originally, she claims, she was paid $350 a week, then was promised $420 a week in 2008 and $450 a week in 2010. But her actual payments, beginning in late 2008, were sporadic, according to her complaint, and often less than the promised rate.

In March 2011, for instance, she claims she worked 288 hours and was paid $560 for the month, or $1.94 an hour.

She depicts the brothers as the restaurant’s owners, operators and managers.

In 2014, Toledo sued the brothers and the restaurant in federal court, White Plains, for unpaid wages. Her lawyer later withdrew the case, because the charges were not covered by federal law, and refiled in Dutchess County Supreme Court, alleging violations of state labor laws.

While the Dutchess case was pending, Luis Alvarez filed for Chapter 7 bankruptcy liquidation. He declared $275,743 in assets – primarily his house in Fishkill, valued at $260,000 – and liabilities of $326,955.

His action was considered a no-asset case; he could keep the house and personal possessions, leaving nothing for creditors. The court discharged his debts and closed the case in 2017.

But Luis Alvarez had not listed Toledo as a creditor or listed the Dutchess lawsuit as a legal action in bankruptcy schedules.

Last year, Toledo’s attorney, Laura L. Revercomb of the Worker Justice Center of New York, Kingston, asked the bankruptcy court to reopen the bankruptcy case.

Luis Alvarez knew about Toledo’s claims, she argued, because a lawyer had answered the Dutchess lawsuit on his behalf.

His failure to notify her client of the bankruptcy, she argued, deprived Toledo of the opportunity to file a claim. And when his debts were discharged, Revercomb stated, Toledo was blocked from getting relief in the Dutchess County case.

Alvarez has “avoided paying Ms. Toledo for hundreds of hours of time she spent cooking, cleaning and washing dishes at his restaurant,” she stated, for wages she “has been waiting to receive for close to 10 years. Debtor’s (Alvarez) unrelenting and long-standing efforts to avoid accountability are palpable.”

Luis Alvarez’s attorney, David J. Babel, the Bronx, responded that Toledo was not listed as a creditor because his client had not been personally served with the Dutchess County complaint and he had no knowledge of her claim.

He claims that the retainer agreement for the attorney who responded to the Dutchess County complaint, on behalf of the brothers and the restaurant, was not signed by Luis Alvarez.

Luis Alvarez was employed as a chef and had no rights to hire, fire or pay employees.

He “may have had some interaction with Leonor Toledo,” Babel stated, “but only as employee to employee as they worked in the same place of business and in the kitchen.”

Revercomb responded that Luis was personally served notice in the Dutchess County and federal lawsuits, and she included a proof of service and his answer to the federal lawsuit as exhibits.

“Debtor Alvarez’s knowledge of her as a creditor,” she stated, “is an undisputed fact.”

U.S. Bankruptcy Judge Cecilia G. Morris ordered the bankruptcy case to be re-opened, “to determine the dischargeability of debtor’s liabilities to creditor Leonor Toledo.”