Davis v. EAB-TAB Enters.

11 Citing cases

  1. Colon v. Compass Grp. U.S.

    188 A.D.3d 800 (N.Y. App. Div. 2020)   Cited 10 times

    " ‘The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the most important consideration’ " ( Athenas v. Simon Prop. Group, LP, 185 A.D.3d 884, 885, 128 N.Y.S.3d 284, quoting Abouzeid v. Grgas, 295 A.D.2d 376, 377, 743 N.Y.S.2d 165 ). "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" ( Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 ; seeDavis v. EAB–TAB Enters., 166 A.D.3d 1449, 1450, 88 N.Y.S.3d 302 ; Gagen v. Kipany Prods., Ltd., 27 A.D.3d 1042, 1043, 812 N.Y.S.2d 689 ). " ‘[I]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship’ " ( Weinfeld v. HR Photography, Inc., 149 A.D.3d 1014, 1015, 52 N.Y.S.3d 458, quoting Raja v. Big Geyser, Inc., 144 A.D.3d 1123, 1124, 42 N.Y.S.3d 288 [internal quotation marks omitted] ).

  2. Cruz v. Hawley (In re Martirano)

    172 A.D.3d 1610 (N.Y. App. Div. 2019)   Cited 3 times

    On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact (see CPLR 3212 ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Matter of Clark , 119 A.D.2d 947, 948, 501 N.Y.S.2d 479 [1986] ). Only when a prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a triable issue of fact (seeAlvarez v. Prospect Hosp. , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Davis v. EAB–TAB Enters. , 166 A.D.3d 1449, 1450, 88 N.Y.S.3d 302 [2018] ). As relevant here, EPTL 4–1.4(a) provides that "[n]o distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of [21] years ... has failed or refused to provide for the child or has abandoned such child" (seeMatter of Ball , 24 A.D.3d 1062, 1062, 807 N.Y.S.2d 163 [2005] ; Matter of Arroyo , 273 A.D.2d 820, 820, 710 N.Y.S.2d 492 [2000], lv denied 95 N.Y.2d 763, 716 N.Y.S.2d 38, 739 N.E.2d 294 [2000] ).

  3. Bongiovi v. Pulla

    2024 N.Y. Slip Op. 50653 (N.Y. Sup. Ct. 2024)

    "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" (see id quoting Bynog v Cipriani Group, Inc., 1 N.Y.3d 193; citing Davis v EAB-TAB Enters., 166 A.D.3d 1449 [3d Dept 2018]; Gagen v Kipany Prods., Ltd., 27 A.D.3d 1042 [3d Dept 2006]). "[I]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship" (see id quoting Weinfeld v HR Photography, Inc., 149 A.D.3d 1014 [2d Dept 2017] quoting Raja v Big Geyser, Inc., 144 A.D.3d 1123 [2d Dept 2016]).

  4. May v. Windham Mountain Resort

    2021 N.Y. Slip Op. 33274 (N.Y. Sup. Ct. 2021)

    "The court's function on a motion for summary judgment is issue finding not issue determination" (Gadani v Dormitory Auth. of State of N.Y., 43 A.D.3d 1218, 1219 [3d 2007]; see Lacasse v Sorbello, 121 A.D.3d 1241, 1242 [3d Dept 2014]), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" (Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [3d Dept 2018]; see Healthcare Professionals Ins. Co. v Parentis, 165 A.D.3d 1558, 1565 [3d Dept 2018]). Upon movant's prima facie showing, the burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 A.D.3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d at 562; accord Miller v Lu-Whitney, 61 A.D.3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 N.Y.3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).

  5. Stevenson v. Joseph

    2021 N.Y. Slip Op. 33180 (N.Y. Sup. Ct. 2021)

    The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 A.D.3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d at 562; accord Miller v Lu-Whitney, 61 A.D.3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 N.Y.3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).

  6. Cornejo v. Eden Palace Inc.

    2020 N.Y. Slip Op. 31618 (N.Y. Sup. Ct. 2020)   Cited 1 times

    If RB Waiter and Baisden are deemed agents of defendants, the wait staff would have been working under the exclusive control of defendants (see Maor, 169 AD3d at 497; Connor, 2010 NY Slip Op 51911, *2; cf. Bynog, 1 NY3d at 199). Even if RB Waiter and Baisden were not agents of defendants, the testimony of Baisden and plaintiffs present factual issues with respect to whether defendants exercised more than incidental control over their work (see Davis v EAB-TAB Enters., 166 AD3d 1449, 1451 [3d Dept 2018]; Hart v Rick's Cabaret Intern., Inc, 967 F Supp2d 901, 916-919 [SDNY 2013]).

  7. Herring v. Bagnell

    2019 N.Y. Slip Op. 52110 (N.Y. Just. Ct. 2019)

    The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 AD3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form . . . or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d at 562; accord Miller v Lu-Whitney, 61 AD3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).

  8. U.S. Bank Nat'l Ass'n v. Lavey

    66 Misc. 3d 1204 (N.Y. Cnty. Ct. 2019)

    It is well established that on a motion for summary judgment, "[t]he court's function on a motion for summary judgment is issue finding not issue determination" ( Gadani v. Dormitory Auth. of State of NY , 43 A.D.3d 1218, 1219 [3d 2007] ; seeLacasse v. Sorbello , 121 A.D.3d 1241, 1242 [3d Dept 2014] ), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" ( Aretakis v. Cole's Collision , 165 A.D.3d 1458, 1459 [3d 2018] ; seeHealthcare Professionals Ins. Co. v. Parentis , 165 A.D.3d 1558, 1565 [3d 2018] ). The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (seeZuckerman v. City of New York , 49 N.Y.2d 557, 562 [1980] ; Davis v. EAB-TAB Enters. , 166 A.D.3d 1449, 1450 [3d Dept 2018] ). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 N.Y.2d at 562 ; accordMiller v. Lu-Whitney , 61 A.D.3d 1043, 1047 [3d Dept 2009] ; seeBanco Popular North America v. Victory Taxi Management, Inc. , 1 N.Y.3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"] )

  9. US Bank N.A. v. Lavey

    2019 N.Y. Slip Op. 52109 (N.Y. Just. Ct. 2019)

    The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 AD3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form . . . or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d at 562; accord Miller v Lu-Whitney, 61 AD3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).

  10. Herring v. Bagnell

    66 Misc. 3d 1204 (N.Y. Cnty. Ct. 2019)

    "The court's function on a motion for summary judgment is issue finding not issue determination" ( Gadani v. Dormitory Auth. of State of NY , 43 AD3d 1218, 1219 [3d 2007] ; seeLacasse v. Sorbello , 121 AD3d 1241, 1242 [3d Dept 2014] ), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" ( Aretakis v. Cole's Collision , 165 AD3d 1458, 1459 [3d Dept 2018] ; seeHealthcare Professionals Ins. Co. v. Parentis , 165 AD3d 1558, 1565 [3d Dept 2018] ). The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (seeZuckerman v. City of New York , 49 NY2d 557, 562 [1980] ; Davis v. EAB-TAB Enters. , 166 AD3d 1449, 1450 [3d Dept 2018] ). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d at 562 ; accordMiller v. Lu-Whitney , 61 AD3d 1043, 1047 [3d Dept 2009] ; seeBanco Popular North America v. Victory Taxi Management, Inc. , 1 NY3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"] )