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Spark Software Solutions, L.L.C v. Z & A Infotek Corporation

July 11, 2011

SPARK SOFTWARE SOLUTIONS, L.L.C., PLAINTIFF-APPELLANT,
v.
Z & A INFOTEK CORPORATION, DEFENDANT-RESPONDENT/ THIRD-PARTY PLAINTIFF,
v.
MEERA KIYASUDEEN, YASMINE KIYASUDEEN AND KYIA ALIYAR, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2469-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 17, 2011

Before Judges Carchman and Messano.

Plaintiff, Spark Software Solutions, LLC, (Spark), appeals the grant of summary judgment in favor of defendant, Z&A Infotek Corporation (Z&A). Plaintiff claimed that defendant owed plaintiff wages of $51,060 representing four months of work. Defendant argued, and the motion judge concluded, that plaintiff could not bring an action for wages because plaintiff is a temporary help service agency or consulting firm, and not registered with the state, as required by the Private Employment Agency Act, N.J.S.A. 34:8-43 to -66. (PEAA or the Act).*fn1 We reverse and remand.

The facts are not in dispute.

Plaintiff, Spark Software Solutions, LLC, was formed by Meera Kiyasudeen*fn2 in 2005. Meera describes himself as a "business analyst" with extensive experience in "Oracle Applications." Meera is the sole employee of Spark, and the sole owner of Spark is Meera's wife, Yasmin Kiyasudeen. According to Meera, he formed the LLC "to protect himself and for tax purposes."

In October 2006, Meera was looking for work and posted his resume on various job portals. The postings were in his name as an individual and did not mention Spark. Meera was then contacted by Jay Shuckla, from Z&A Infotek, an employment agency, who informed him that Ricoh Corporation (Ricoh) had an opening for an IT professional. Meera sent his resume to Shuckla.

Defendant coordinated two interviews between Meera and Ricoh, and also negotiated Meera's pay, schedule and start date. Spark was never mentioned in the negotiations. After a start date was established, defendant asked Meera for his LLC information, which Meera provided. Defendant then sent Meera two documents to sign - a "Professional Services Agreement,"*fn3 and a "Purchase Order."

Meera began working for Ricoh in November 2006. According to plaintiff, "the relationship with the defendant was rocky at times, because the defendant was continually late in paying [him]," but Meera continued to perform work for Ricoh until the agreement between Ricoh and defendant was terminated in September 2008. At this point, the contract between Meera and defendant was also terminated because defendant could no longer provide Meera with work.

Defendant did not pay plaintiff for work performed on the Ricoh contract between June 30, 2008, and September 30, 2008. According to plaintiff, during this time period, Meera performed 520 hours of work at $115 per hour.*fn4 Meera sent invoices to defendant, and defendant paid only $8,740. According to plaintiff, he is still owed $51,060 plus interest. Defendant responded that plaintiff was not entitled to his wages because he was not registered with the State of New Jersey as a temporary help service.

Hoping to receive payment, plaintiff then registered with the State as a temporary help service. He decided to register without consulting an attorney.

In granting defendant's motion for summary judgment, the motion judge concluded that plaintiff was a temporary help service firm,*fn5 and explained:

I understand that this is a very harsh result. But it's a result that is compelled by the law. And there is nothing that has been presented to me, within the time that you had an opportunity to present to me, that gives rise to any dispute about any material fact as to whether or not Spark Software was registered, as required under the law. The evidence is pretty clear that it was not.

It's also clear that the plaintiff testified that it was temporary employment, so it brought it under the law - the obligation to register. It was not. The company subsequently registered in ...


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