Hernandez v. Chefs Diet Delivery, LLC

• Decision Date: 01 February 2011
• Parties: Ian HERNANDEZ, et al., appellants, v. CHEFS DIET DELIVERY, LLC, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 623
81 A.D.3d 596

Ian HERNANDEZ, et al., appellants,
v.
CHEFS DIET DELIVERY, LLC, et al., respondents, et al., defendant.

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

Feb. 1, 2011.

915 N.Y.S.2d 623

Thompson Wigdor & Gilly, LLP, New York, N.Y. (Scott B. Gilly and Ariel Y. Graff of counsel), for appellants.

915 N.Y.S.2d 624

Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Stuart S. Zisholtz of counsel), for respondents Chefs Diet Delivery, LLC, Chefs Diet at Home, Inc., Arthur Gunning, Michael McDonald, Tyler Wilson, Nicholas Zazza, Keith Doe, and Mesha Doe.

Marshall M. Stern, P.C., Huntington Station, N.Y. (Judith Donnenfeld of counsel), for respondents Esquire, Ltd. and Louis Martinez.

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

81 A.D.3d 596

In a putative class action, inter alia, to recover damages pursuant to Labor Law article 6, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated December 17, 2009, as granted that branch of the motion of the defendants Chefs Diet Delivery, LLC, Chefs Diet at Home, Inc., Arthur Gunning, Michael McDonald, Tyler Wilson, Nicholas Zazza, Keith Doe, and Mesha Doe, which was to dismiss the complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(1), granted the cross motion of the defendants Esquire, Ltd., and Louis Martinez to dismiss the complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(1),

81 A.D.3d 597

granted that branch of the cross motion of the defendants Angle Routing, Ltd., and Robert Green which was to dismiss the complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(1), and granted that branch of the cross motion of the defendants CDD Routing, Ltd., Icon Routing Corp., and Andrew Zurica which was to dismiss the complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(1).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondents appearing separately and filing separate briefs, that branch of the motion of the defendants Chefs Diet Delivery, LLC, Chefs Diet at Home, Inc., Arthur Gunning, Michael McDonald, Tyler Wilson, Nicholas Zazza, Keith Doe, and Mesha Doe, which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) is denied, the cross motion of the defendants Esquire, Ltd., and Louis Martinez to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) is denied, that branch of the cross motion of the defendants Angle Routing, Ltd., and Robert Green which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) is denied, and that branch of the cross motion of the defendants CDD Routing, Ltd., Icon Routing Corp., and Andrew Zurica which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) is denied.

The plaintiffs commenced this putative class action on behalf of themselves and all other similarly situated delivery drivers, inter alia, to recover damages for violations of Labor Law article 6, which governs an employer's payment of wages and benefits to employees ( see Labor Law § 190 et seq.). "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" ( Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 A.D.2d 334, 335, 687 N.Y.S.2d 667). Although Labor Law § 190 broadly defines an "[e]mployee" as "any person employed for hire by an employer in any employment" (Labor Law § 190[2] ), "[t]his definition excludes independent contractors" ( Akgul v. Prime Time Transp., 293 A.D.2d 631, 633, 741 N.Y.S.2d 553; see Bynog v. Cipriani Group, 1 N.Y.3d 193, 199, 770 N.Y.S.2d 692, 802 N.E.2d 1090;

915 N.Y.S.2d 625

Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 A.D.2d at 335, 687 N.Y.S.2d 667). "[T]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results" ( Bynog v....