Opinion
Index No. 518343/2019 Motion Sequences Nos. 3 & 4
07-17-2024
ROBERT BEHM, Plaintiff, v. UTOG 2-WAY RADIO, INC., Defendant.
Unpublished Opinion
At an IAS Tenn, Part 84 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Sheet, Brooklyn, New York, on the 17 day of July, 2024.
PRESENT: HON. CAROLYN E. WADE, Justice.
Carolyn E. Wade Judge:
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed.__ 35-43; 45-47
Opposing Affidavits/Answer (Affirmations)__ 44
Affidavits/ Affirmations in Reply__ 48-52
Upon the foregoing papers, and after oral argument, in this action to recover damages in this employment action under the New York Minimum Wage Act ("NYMWA") and New York Labor Law ('NYLL"), defendant Utog-2-Way Radio, Inc. (''defendant") moves (in motion [mot.] sequence [seq.] number [no.] three) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all causes of action. Plaintiff Robert Behm ("plaintiff') cross-moves (in mot. seq. no. four) for an order, pursuant to CPLR 3212, granting him partial summary judgment.
Background
Plaintiff commenced the instant action by filing a summons and verified complaint on August 20, 2019 (NYSCEF Doc No. 1), According to the complaint, plaintiff was employed by defendant, a ear service operator, for more than four years as a chauffeur until his employment ended in or about August 2019 (id. at ¶ 3-5). Plaintiff contends that he was misclassified by defendant as an independent contractor when, in reality, he was defendant's employee (id. at ¶ 6), Plaintiff asserts that defendant failed to pay him overtime pay, minimum wages, and spread of hours pay, and did not provide proper disclosures pursuant to the Wage Theft Prevention Act (WTPA) (id. at ¶¶ 7-8). Plaintiff alleges defendant violated New York Wage and Hour Law and seeks judgment in his favor in an amount not more than $200,000.00 for unpaid back wages, overtime, liquidated and statutory damages, lost wages, and other damages, which includes attorneys' fees and costs (id. at 3).
Defendant filed its answer on October 2,2019, and asserted 14 affirmative defenses (NYSCEF Doc No. 2). In its answer, defendant denies the allegations in plaintiffs complaint and asserts that it was not plaintiff's employer (id. at ¶¶1-10). Notably, in defendant's fourth affirmative defense, defendant asserts that "[plaintiff] held himself out to be an independent contractor[,] conducted himself solely for his own benefit and not the benefit of the defendant[] and received the benefits of independent contractor status in his interactions with the defendant" (id. at ¶ 14). Additionally, in its tenth affirmative defense, defendant maintains that "plaintiff freely and voluntarily contracted with defendant to use defendant's dispatch system to service for-hire vehicle customers and paid defendant according to the rates plaintiff selected [and] was paid no wages and paid fees to defendant as self-employed for-hire vehicle driver" (id. at ¶ 20). Defendant demands judgment dismissing plaintiffs complaint and awarding it costs, disbursements, and reasonable attorneys' fees (id. at 4-5). After the filing and resolution of two discovery related motions, the instant motion practice ensued and is the basis of this decision.
Parties' Contentions
In support of its motion for summary judgment, defendant asserts that it operates a "black car" ground transportation service, and plaintiff was one of its former drivers (NYSCEF Doc No. 42 at 1; NYSCEF Doc No. 41 at ¶ 3). Defendant vigorously denies that plaintiff was an employee who was misclassified as an independent contractor. It asserts that NYLL §651 and its federal counterpart, known as the taxicab exception, provides that a driver engaged in the business of operating a taxicab is not a statutory employee (id). Defendant further notes that courts have consistently held that this exception is applicable to black car operators and similar ground transportation operators (id), Defendant argues that plaintiff was a taxicab driver within the meaning of NYLL § 651 and is not defendant's employee; thereby, preventing him from asserting claims under NYMWA, NYLL and WTPA. Therefore, Defendant contends that the plaintiff s complaint must be dismissed.
In support of its motion, defendant submits the affidavit of its general manager, Frank Mennona ("Mennona") (NYSCEF Doc No. 41 at¶ 1). Mennona avers that defendant provides fare referral and related services to its members and "stock ownership confers upon each shareholder the rights generally associated with corporate stock ownership as well as 'radio rights' that grant the shareholder access to the cooperative's fare referral and processing services" (id. at ¶ 3). Mennona further asserts that shareholders may earn income operating their radio, or they may lease it to a qualified, third-party driver who has a New York City Taxi & Limousine Commission ("TLC") license (id. at ¶ 4). Plaintiff possessed a TLC license and was one of defendant's lessee drivers (id. at ¶ 5). Mennona contends that each driver is responsible for purchasing or leasing his or her own vehicle, and for all maintenance and operation costs, such as fuel, insurance, and repairs (id.).
"While technological advances have for the most part rendered dispatching transportation jobs by two-way radio obsolete, the bundle of rights associated with share ownership in a dispatching cooperative is still commonly referred to in the industry' as a 'radio' or as 'radio rights'" (id. At n. 2).
At the time period at issue, plaintiff leased a 2014 Toyota Avalon sedan which could seat up to five or fewer passengers (id. at ¶ 5; NYSCEF Doc No. 39 at 2). Defendant states that its affiliated drivers can work if, when, where and for however long they choose, and can accept or decline jobs at their discretion (id. at ¶ 6). Many of the company's affiliated drivers also service their own customers and use defendant's competitors such as Uber and Lyft (id). To use defendant's fare referral, a driver would position his or her vehicle within one of the geographical zones that comprise defendant's service area, log into the dispatching system, electronically indicate his or her availability to receive work, and the driver joins an electronic queue for that zone (id. at ¶ 8). Once a member of the general public calls and requests service originating in that Zone, the job is offered to the drivers waiting in the zone on a first pome, first serve basis (id. at ¶ 9). Mennona notes that the company does not provide shuttle services or other recurrent services, operate on fixed routes, or transport passengers between two or more fixed termini (id. at ¶ 10). While various corporate customers have accounts with defendant with preferential pricing and discounts, defendant is not a party to any contracts requiring that it provide transportation services (id. at ¶ 11). The fare paid by the customer is based upon the pick-up and drop-off zones and may be requested in advance through defendant's website, a smartphone application, speaking with a reservationist, or defendant's rate book (id. at ¶ 12; NYSCEF Doc No, 40). For each fare completed, the driver receives a percentage of the fare, along with any gratuities and expenses reimbursed by the customer (id).
Defendant asserts that whether plaintiff was an employee, as he alleges, or an independent contractor, as defendant maintains, has no bearing upon the issue of whether he is entitled to assert claims under NYLL and WTPA (NYSCEF Doc No. 42 at 5). In this regard, defendant contends that it is entitled to summary judgment dismissing plaintiff's claims because under the taxicab exemption, an employee driver is not considered a statutory employee for purposes of the statutes upon which plaintiff has brought his suit (id).
In support of his cross-motion and in opposition to defendant's motion for summary judgment, plaintiff submits an affidavit and excerpts from defendant's deposition transcript. Plaintiff avers that he was employed by the defendant for about three years and that ail of his work assignments were pursuant to defendant's corporate customer contracts with companies such as Bloomberg Media or American Express (NYSCEF Doc No. 46 at 4). Plaintiff states that the basis of his knowledge of the purported contracts were from regular conversations with various owner-drivers who regularly discussed them, and that he was informed that if Blumberg (sic) failed to renew its contract, defendant would be "in big trouble" (id. at 5). Plaintiff argues that the taxicab exemption does not apply as the work plaintiff performed as a driver was pursuant to contracts with corporate customers; and the exemption does not apply to services operated "over fixed routes, or between fixed terminals, or tinder contract" (id. at 7-8). Plaintiff further states that in addition to his overtime claims, his claims asserted under the WTPA fall under Article 6 of the Labor Law, and the definition therein of "employee" does not contain any taxicab exemption (id. at ¶ 8). He contends that even if the taxicab exemption is applicable, it would not impact his claims under WTPA (id. at 8). Plaintiff also maintains that defendant can not now raise the taxicab exemption as an affirmative defense; therefore, it should be deemed waived (id.).
In its reply and opposition to plaintiff's cross-motion, defendant reiterates its position that plaintiff does not qualify as an employee, within the meaning of the NYLL and the WTPA. He asserts that his claims must be dismissed, as he was a taxicab driver within the meaning of New York's taxicab exemption (NYSCEF Doc No. 50 at 1). Defendant argues that plaintiff's assertion that the taxicab exemption is inapplicable because it excludes services provided under contract fails, for purposes of defeating a summary judgment motion, because the hearsay claims of unidentified drivers cannot be used to discredit Mennona's affidavit and firsthand knowledge of the facts (id. at 2). Next, plaintiff s assertion that he serviced only recurrent contracts with corporate clients, is based upon hearsay conversations allegedly had With defendant's other drivers which are not identified by plaintiff (id.). Defendant argues that, even if plaintiff established that he transported corporate passengers, such work could easily be the result of plaintiff preferring corporate passengers as opposed to defendant exclusively offering such work (id. at 2-3). Specifically, defendant highlights that Mennona averred that the company does not provide shuttle services or other recurrent services, operate on fixed routes or transport passengers between two or more fixed termini and that "[w]hile various corporate customers have accounts with [defendant] that provide them with preferential pricing and discounts[,] [defendant] is not a party to any contracts requiring that it provide transportation services" (id. at 3).
Next, defendant argues that plaintiff's claim that the taxicab exemption does not apply to plaintiff's claims, pursuant to the WTPA, is illogical and unsupported. The WTPA requires statutory employers to provide their statutory employees with a notice at the time of hiring regarding their wage rate. However, since defendant's position is that plaintiff is a taxicab driver withing the meaning of 12 NYCRR 142-2.14 (c) (6); thus, not an employee for purposes of entitlement to overtime compensation, he is likewise not an employee to whom the WTPA applies (id. at 4). Defendant contends that if plaintiff is not an employee for purposes of Article 19 and the Minimum Wage Act, he cannot at the same time be an employee for purposes of entitlement to wage notices under Articled (id. at 5). The purpose of the NYMWA is to ensure that statutory employ ees are properly paid their wages. The purpose of New York Labor Law Article 6 (Payment of Wages) is to ensure that statutory employees ate properly notified of what their wages are, and to provide a breakdown Of what the employee is receiving. If a worker, such as plaintiff, does not fall within the protections of the former because he is not a statutory employee, it makes no sense that he is entitled to the notice requirements dictated by the latter for statutory employees (id). Lastly, defendant contends that overtime exemptions are not among the "raise or waive" affirmative defenses listed in CPLR 3211 (e); nor are they among the defenses set forth in CPLR 3018 (b); thus, defendant asserts there has been no such waiver in the instant case (id. at 5-6).
Discussion
"To obtain summary judgment it is necessary that the movant establish his [or her] cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his [or her] favor" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial Of any issue of fact" (id.). If there are triable issues of fact as to how the alleged accident occurred, then the motion should be denied (see Lima v HY 38 Owner, LLC, 208 A.D.3d 1181, 1183 [2d Dept 2022]). "Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Murray v Community House Development Fund Company, Inc., 223 A.D.3d 675, 677 [2d Dept 2024]; Chiara v Town of New Castle, 126 A.D.3d 111 [2d Dept 2015]).
Additionally, "[i]n determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party, and where conflicting inferences may be drawn, the court must draw those most favorable to the nonmoving party" (Murray, 223 A.D.3d at 676-677; Open Door Foods, LLC v Pasta Machines, Inc., 136 A.D.3d 1002, 1005 [2d Dept 2016]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Khutoryanskaya v Laser & Microsurgery, P.C., 222 A.D.3d 633, 635 [2d Dept 2023]; Schumacher v Pucciarelli, 161 A.D.3d 1205 [2d Dept 2018]).
First, contrary to plaintiff's contention, the taxicab exemption is not waived, as it is not an affirmative defense that must be raised or is deemed waived (Nash v MRC Recovery, Inc., 172 A.D.3d 1213,1216 [2d Dept 2019] [holding that defendants' defense that plaintiff never attempted to' retrieve his belonging in a conversion action was not an affirmative defense that needed to be raised in the answer]; see also CPLR 3018 [b]).
Plaintiff's complaint asserts wage/hour claims under the NYMWA and NYLL (NYSCEF Doc No. 1 at 1). Under the facts alleged in the complaint, plaintiff does not qualify as an "employee" entitling him to the protection of state minimum wage laws. The NYMWA provides that "[e]very employer shall pay to each of its employees for each hour worked a wage of not less than the amount set forth in the statute" (Labor Law § 652[1]; see Carver v State, 87 A.D.3d 25, 29 [2d Dept 2011]). The law further defines an employee as one that "includes any individual employed or permitted to work by an employer in any occupation, but shall not include any individual who is employed or permitted to Work",.."as a driver engaged in operating a taxicab" (Labor Law § 651 [5][d]; Vasquez v NS Luxury Limousine Service, Ltd., U.S. Dist Ct, S.D. NY, March 31, 2021, Nathan, J.). The New York Administrative Code defines a taxicab driver as follows:
"The term driver engaged in operating a taxicab means an individual employed to drive an automobile equipped to carry no more than seven passengers, which is used in the business of carrying or transporting passengers for hire on a zone or meter fare basis, and the use of which is generally limited to a
community's local transportation needs and which is not operated over fixed routes, or between fixed terminals, or under contract" (12 NYCRR 142-2.14[c][6]).
Generally, courts applying the taxicab exemption under New York law have deferred to the Department of Labor's definition (see Barenboim v Starbucks Corp., 21 N.Y.3d 460, 470-471 [2013] [holding that the New York State Department of Labor's interpretation of the NYLL is entitled to deference]; see also Zhang v XYZ Limousine, Inc., U.S. Dist Ct, ED NY, March 15, 2019, Tomlinson, J. [applying and analyzing the taxicab exemption under the NYLL and NYCRR and deferring to the New York State Department of Labor's definition of driver engaged in operating a taxicab]). ''Additionally, courts have recognized that the taxicab exemption under NYLL is substantially similar to the taxicab exemption under the Fair Labor Standards Act (FLSA)" (Zhang at * 10, citing Munoz-Gonzalez v D.L.C. Limousine Services, Inc., 904 F.3d 208 [2d Cir 2018]).
Defendant has demonstrated that plaintiff did not qualify as an employee entitling him to the protections of the NYMWA. While plaintiff maintains that he is covered by the state minimum wage laws, he docs not submit any evidence that defendant's services are operated over fixed routes, between fixed terminals, or under contracts sufficient to deem him an employee. Conversely, Mennona's affidavit establishes that plaintiffs vehicle was only capable of carrying five or fewer passengers, used to carry or transport passengers for hire in zones, and was not operated over fixed routes, or between fixed terminals, or under contracts (NYSCEF Doc No. 39 at 2; NYSCEF Doc No. 41). While plaintiff claims he was carrying passengers under defendant's contracts with corporate entities, he does not have any personal knowledge of the purported contracts to which he references, does not submit copies of any such contracts, and fails to otherwise provide any evidence in his complaint, cross-motion, or any other document that the contracts, which he claims exist, are sufficient to deem the taxicab exemption inapplicable to plaintiff (see Abdelhamed v XYZ Limousine, Inc., Sup Ct, Kings County, September 14,2021, Baily-Schiffman, J., index No, 526546/19 [holding that plaintiffs' black car drivers were not employees of defendants' black car ground transportation radio service that was provided to its shareholder-drivers, as the plaintiff drivers fell within the taxicab exception of 12 NYCRR 142-2.14 (c) (6), where they failed to present contracts sufficient to avoid the application of the taxicab exemption]; see also Munoz-Gonzalez, 904 F.3d at 217 [holding that a business' possession of any contracts for recurrent transportation does not disqualify its drivers from the taxicab exemption as the drivers were available for hire by individual members of the general public]).
Plaintiff merely asserts in his affidavit that he serviced Bloomberg Media and American Express, among other clients, and claims he knows that they had contracts with defendant based upon conversations with unnamed drivers. However, these conversations constitute inadmissible hearsay, and he has not identified any of the individuals who allegedly furnished this information (see generally People v Smith, 171 A.D.3d 1102, 1104 [2d Dept 2019] [holding that the recording of an unidentified declarant was inadmissible hearsay, as there was no evidence that the declarant had personal knowledge]).
Additionally, defendant has established that plaintiff is not entitled to wage notices as required by WTPA. "In order to state a claim under article 6, a plaintiff must first demonstrate that he or she is an employee entitled to its protections" (Velasquez v Sunstone Red Oak, LLC, 213 A.D.3d 883, 884 [2d Dept 2023]; quoting Bhanti v Brookhaven Memorial Hosp, Medical Center, Inc., 260 A.D.2d 334 [2d Dept 1999]). "Although Labor Law § 190 broadly defines an employee as any person employed for hire by an employer in any employment[] this definition excludes independent contractors" (Hernandez v Chefs Diet Delivery, LLC, 81 A.D.3d 596, 597 [2d Dept 2011]). "The critical inquiry in determining whether a plaintiff is an employee of a defendant is the degree of control exercised by the purported employer over the results produced or the means used to achieve the results" (id.; quoting Hernandez, 81 A.D.3d at 597), "Factors relevant to assessing control include whether the worker (1) worked at his or her own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule" (id. at 884-885; quoting Bynog v Cipriani Group, Inc., 1 N.Y.3d 193 [2003]). "Where the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law" (Hernandez, 81 A.D.3d at 597).
Here, the court finds that the defendant established that plaintiff was an independent contractor (Castro-Quesada v Tuapanta, 148 A.D.3d 978 [2d Dept 2017] [holding that for-hire vehicle drivers were independent contractors, not defendant's employees]). Through the submission of Mennona's affidavit, defendant established that plaintiff was responsible for his own schedule, choosing when to log into defendant's dispatching system and indicating that he is available to receive work. Plaintiff Was also free to provide his service to other car services, he was responsible for purchasing or leasing his own vehicle, and for all costs associated with its maintenance and operation, including fuel, insurance and repairs, and there was no fixed schedule (id.). In opposition, plaintiff failed to raise a triable issue of fact. Thus, the court finds that the plaintiff is not an employee, but rather an independent contractor. Therefore, the defendant was not required to provide WTPA notices to plaintiff.
Conclusion
All arguments raised on the motions and evidence submitted by the parties in connection thereto have been considered by this court, regardless of whether they are specifically discussed herein. Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment (mot. seq. no. three) is granted, in its entirety; and it is further
ORDERED that plaintiff s cross-motion (mot. seq. no. four) for summary judgment is denied, in its entirety.
The Complaint is hereby dismissed.
This constitutes the decision, order, and judgment of the court.