Adler v. 20/20 Companies

• Decision Date: 15 March 2011
• Citation: 82 A.D.3d 915,918 N.Y.S.2d 585
• Parties: Marla ADLER, et al., appellants, v. 20/20 COMPANIES, et al., defendants, Verizon Communications, Inc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 585

82 A.D.3d 915

Marla ADLER, et al., appellants,

v. 20/20 COMPANIES, et al., defendants,Verizon Communications, Inc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 15, 2011.

Zabell & Associates, P.C., Bohemia, N.Y. (Saul D. Zabell and Tim Domanick of counsel), and Thompson Wigdor & Gilly, LLP, New York, N.Y. (Scott B. Gilly and Cindy Uh of counsel), for appellants (one brief filed).

Greenberg Traurig, LLP, New York, N.Y. (Alan Mansfield, William A. Wargo, and Candace Camarata of counsel), for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for violation of Labor Law § 215 and tortious interference with prospective economic or contractual relations, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 5, 2010, which granted the motion of the defendants Verizon Communications, Inc., and Verizon Services Corp. pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against those defendants.

ORDERED that the order is affirmed, with costs.

In their amended complaint, the plaintiffs alleged that they were jointly employed by the defendant 20/20 Communications, Inc. (hereinafter 20/20), and the defendants Verizon Communications, Inc., and Verizon Services Corp. (hereinafter together Verizon) to sell Verizon FiOS services on a commission basis. They commenced this action, inter alia, to recover damages pursuant to Labor Law § 215, which prohibits discrimination against an employee who complains to his to her employer regarding Labor Law violations, and who contends that he or she was fired in retaliation for complaining that he or she was not being paid commissions to which he or she was entitled. The amended complaint further alleged that Verizon was liable for tortious interference with prospective economic or contractual relations because it "black-listed" the plaintiffs, thereby preventing their employment by the defendant TRG Customer Solutions (hereinafter TRG), which also hired salespeople to sell FiOS services pursuant to an agreement with Verizon.

Verizon moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against it, contending that the plaintiffs were employed by 20/20, which provided sales and marketing services as an independent contractor to Verizon pursuant to an outsourcing agreement. Verizon contended that since it did not employ the plaintiffs, they had no cause of action against Verizon pursuant to Labor Law § 215. In support of the motion, Verizon submitted copies of its marketing agreement with 20/20 which recited, among other things, that "in providing any Services under this Agreement, [20/20] is acting solely as an independent contractor and not as an agent of any other party. Persons furnished by [20/20] shall be solely the employees or agents of [20/20] and shall be under the sole and exclusive direction and control of such party. They shall not be considered employees of Verizon for any purpose."

The Supreme Court agreed with Verizon that the documentary evidence demonstrated that the plaintiffs were employed solely by 20/20 and dismissed the Labor Law § 215 causes of action insofar as asserted against Verizon. The Supreme Court further dismissed the cause of action to recover damages for tortious interference with prospective economic or contractual relations, finding that the plaintiffs had failed to plead that Verizon used wrongful means to prevent their employment by TRG. We affirm.

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; see Country Pointe at Dix Hills Home Owners Assn., Inc. v. Beechwood Org., 80 A.D.3d 643, 915 N.Y.S.2d 117). In support of that branch of its motion which was to dismiss the causes of action alleging violation of Labor Law § 215, Verizon submitted various documents, including the agreement between Verizon and 20/20, which classified the plaintiffs solely as the employees of 20/20. That agreement further provided, in relevant part, that:

"[20/20] will have the sole responsibility and authority for any and all selection, hiring, management, coaching, evaluation, discipline, promotion and employment termination of its employees, and Verizon agrees that it will not perform or attempt to perform any of the foregoing activities with respect to [20/20] employees. [20/20] has the sole right to provide direct management and supervision to its employees on-site at any time during Verizon's hours of operation. Verizon agrees to take no action

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