STATEMENT OF FACTS Plaintiffs allege that Uncle Jack’s Steakhouse, Inc., Uncle Jack’s of Bayside, Inc., Uncle Jack’s Steakhouse Midtown, Inc., William J. Degel, Thomas Carpenter, and Dennis Borysowski (collectively, “Defendants”) violated the Fair Labor Standards Act and New York Labor Law by failing to pay Plaintiffs minimum wages, overtime wages, spread of hours pay, uniform allowances and by misappropriating tips at three restaurants. In 1994, Defendant William Degel was convicted of one count of credit card fraud (18 USC 1029(a)(2)) and one count of conspiracy to commit credit card fraud (1029(b)(2)). 1 Evidence of such conviction is highly relevant to this action for violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), where the credibility of Defendant William Degel is of great import.

On December 1st 1983, Agora status was adjusted to that of Lawful Permanent Resident. On April 1, 1992 Agora was convicted by guilty plea in the United States District Court for the District of Rhode Island for the offense of credit card Fraud in violation of 18 U.S.c. Section 1029[a][2]. On August 4, 1993, Agora was convicted by plea for the offense of Failure To Appear for sentencing, in violation of 18 U.S.c. Section 3146[a].

ne matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act [21 USCS § 802]), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 [18 USCS § 201] (relating to bribery), section 224 [18 USCS § 224] (relating to sports bribery), sections 471, 472, and 473 [18 USCS §§ 471, 472, and 473] (relating to counterfeiting), section 659 [18 USCS § 659] (relating to theft from interstate shipment) if the act indictable under section 659 [18 USCS § 659] is felonious, section 664 [18 USCS § 664] (relating to embezzlement from pension and welfare funds), sections 891-894 [18 USCS §§ 891 through 894] (relating to extortionate credit transactions), section 1028 [18 USCS § 1028] (relating to fraud and related activity in connection with identification documents), section 1029 [18 USCS § 1029] (relating to fraud and related activity in connection with access devices), section 1084 [18 USCS § 1084] (relating to the transmission of gambling information), section 1341 [18 USCS § 1341] (relating to mail fraud), section 1343 [18 USCS § 1343] (relating to wire fraud), section 1344 [18 USCS § 1344] (relating to financial institution fraud), section 1425 [18 USCS § 1425] (relating to the procurement of citizenship or nationalization unlawfully), section 1426 [18 USCS § 1426] (relating to the reproduction of naturalization or citizenship papers), section 1427 [18 USCS § 1427] (relating to the sale of naturalization or citizenship papers), sections 1461-1465 [18 USCS §§ 1461 through 1465] (relating to obscene matter), section 1503 [18 USCS § 1503] (relating to obstruction of justice), section 1510 [18 USCS § 1510] (relating to obstruction of criminal investigations), section 1511 [18 USCS § 1511] (relating to the obstruction of State or local law enforcement), section 151

Out of the six claims in the case, five sounded in fraud, and the last claim for negligent spoliation of evidence failed because plaintiff could not prevail in the underlying suit and could not prove damages. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007) (“the plaintiffs filed this suit . . . claiming: (1) violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1029 & 1343; (2) tortious interference with economic advantage; (3) tortious interference with fiduciary relationship; (4) civil conspiracy; (5) willful and wanton spoliation of evidence; and (6) negligent spoliation of evidence”). Case 1:08-cv-05213 Document 112 Filed 10/14/2009 Page 24 of 66 10 whether defendants acted with an intent to deceive; plaintiffs must prove only that defendants made a material misstatement.