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FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--- ------------------------------------------------------------X
CHRISTOPHER SAGER,
Plaintiff, Index No.: 601516/2019
- against - AFFIRMATION IN SUPPORT
OF DREXEL UNIVERSITY'S
MOTION FOR SUMMARY
JUDGMENT
FRONTPAGE INVESTMENTS d/b/a YOUSEF
HABIBIAN AND DREXEL UNIVERSITY,
Defendants.
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GEORGE P. CORNELL, an attorney duly admitted in the Courts of the State of New York,
affirms the truth of the following under penalties of perjury:
1. I am an associate of the law firm Biedermann Hoenig Semprevivo, a Professional
Corporation, attorneys for defendant DREXEL UNIVERSITY ("Drexel"). As such, I am familiar with
the facts, circumstances, pleadings, and proceedings heretofore had herein.
2. This affirmation, along with the exhibits attached hereto and accompanying
memorandum oflaw, is respectfully submitted in support of Drexel's Motion for an Order: (1) granting
it summary judgment, pursuant to CPLR § 3212, dismissing all claims against it, with prejudice; and
(2) for such other and further relief as the Court deems just and proper.
PRELIMINARY STATEMENT
3. This is an action for personal injury allegedly sustained on August 1, 2018, when the
plaintiff, Christopher Sager ("Plaintiff'), was caused to be injured while in the course of his
employment with Jaidan Industries, Inc. ("Jaidan"). Plaintiff claims he was struck by a forklift
operated by co-employees Alex LaComba ("Mr. LaComba") and Joseph Theoharakis ("Mr.
Theoharakis"), during the course of their employment with Jaidan.
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4. Mr. LaComba and Mr. Theoharakis were employed full-time by Jaidan as students
participating in Drexel's Cooperative Education Program (the "Co-op Program") on the date of the
alleged accident. Plaintiff asserts that Drexel should be held liable for the conduct of the Mr. LaComba
and Mr. Theoharakis under theories of vicarious liability and negligent supervision and training.
5. Plaintiffs claims against Drexel fail because Mr. LaComba and Mr. Theoharakis were
employees of Jaidan on the date of loss and not employed by Drexel. There is therefore no basis to
hold Drexel vicariously liable for the conduct of these individuals since they were never employed by
Drexel.
6. For that same reason, Plaintiff cannot hold Drexel liable for negligent supervision or
training; only Jaidan, Mr. LaComba and Mr. Theoharakis' employer, may be held liable for such a
claim. Moreover, Jaidan assumed all responsibility, supervision and control over both students relating
to their employment with Jaidan, evidenced by a written agreement between Jaidan and Drexel. Thus,
the only party that can be held liable for Mr. LaComba's and Mr. Theoharakis' conduct as Jaidan
employees is Jaidan. However, since Plaintiff has received workers' compensation benefits from
Jaidan, he cannot sue Jaidan, and is now impermissibly seeking additional recovery from Drexel. 1
7. Despite the incontrovertible facts that Mr. LaComba and Mr. Theoharakis were Jaidan
employees and not under the supervision, control or direction of Drexel, facts which very obviously
preclude any claim against Drexel for this alleged work-place accident, a close reading of Plaintiffs
Complaint reveals that Plaintiff attempts to circumvent the law by improperly characterizing the
students as "interns." In doing so, Plaintiff is trying to hold Drexel liable for the students' conduct as
Drexel interns. This tactic fails because the Co-op Program is not an internship program. As it relates
1 Curiously, Plaintifffiled a separate action against Jaidan's principals, Richard and Rhonda Sussman, in this court on
August 23, 2018, captioned Christopher Sager v. Richard Sussman and Rhonda Sussman, under Index Number
611425/2018. It is clear Plaintiff is seeking any and all additional recovery on top of his workers'
compensation benefits.
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to this case specifically, Mr. LaComba and Mr. Theoharakis' full-time,paid employment with Jaidan
was certainly not an internship, nor was it supervised or controlled by Drexel.
8. Based upon these facts, there is simply no basis upon which Drexel can be held liable
for the work-place accident that allegedly injured Plaintiff 130 miles away from Drexel's campus.
Plaintiff's causes of action against Drexel are a baseless attempt to seek an additional avenue for
recourse. Given the undisputed facts, Plaintiffs causes of action against Drexel must be dismissed as
a matter oflaw.
PROCEDURAL HISTORY
9. Plaintiff commenced this action by filing his Summons and Verified Complaint in the
Supreme Court, Nassau County, on March 28, 2019, asserting claims against co-defendant Frontpage
Investments d/b/a Yousef Habibian ("Frontpage") and Drexel. See Ex. A.
10. Issue was joined by the service of Drexel's Verified Answer, which asserted cross-
claims against Frontpage, on May 17, 2019. See Ex. B.
11. Frontpage filed its Verified Answer on March 13, 2019. See Ex. C.
12. On or about July 16, 2019, Plaintiff served his Verified Bill of Particulars on Drexel.
See Ex. D.
STATEMENT OF MATERIAL FACTS
13. Plaintiff alleges that on August 1, 2018, while in the course of his employment, he was
caused to be injured when a fork-truck and its appurtenances struck him. See Ex. A ,r20.
14. The alleged accident occurred at 154 Haven Avenue, Port Washington, New York
11050, property owned by co-defendant Frontpage. See Ex. C ,r1.
15. According to Plaintiffs Verified Bill of Particulars, Jaidan owned the forklift that
struck him, and it was being operated by "a student" from Drexel. See Ex. D ,r10.Plaintiff alleges that
the forklift's "lift mast" fell on his left foot. Id. ,r,r11,20. Plaintiff's Complaint also alleges that the
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accident was caused by a defect on the premises and therefore asserts liability against Frontpage for
his alleged injury. See Ex. A 121.
16. Plaintiff alleges that Drexel is vicariously responsible for Mr. LaComba and Mr.
Theoharakis' negligent operation, maintenance, management and control of the forklift. See Ex. A
159. Plaintiff further alleges that Drexel was negligent in failing to properly assess the work that its
students would be doing and in failing to properly train or educate its students as to the proper
operation of fork-trucks. Id 160.
Drexel's Cooperative Education Program
17. On the date of the alleged accident, the Mr. LaComba and Mr. Theoharakis were
employed by Jaidan. They received the opportunity to apply for their employment with Jaidan through
Drexel's Co-op Program.
18. The Drexel Co-op Program provides Drexel students with the opportunity to gain full-
time employment while enrolled at Drexel. Thus, rather than working part-time or only a couple of
days a week while still attending regular classes, Drexel Co-op students dedicate their full time to their
employment. See Affidavit of Ian Sladen ("Sladen Aff. "), annexed hereto as Exhibit E, at 13.
19. Students do not receive a tuition bill while participating in the Co-op Program, they
only pay a student activity fee for each term that they are employed in a Co-op job. Id ,4.
20. Co-op students are normally employed for a longer duration than a normal Drexel
quarter, with most Co-op employments lasting up to 6 months. Id 15.
21. Over 80% of Co-op jobs are paid and Drexel encourages Co-op employers to pay Co-
op students wages comparable to other employees having similar responsibilities. Id 16.
22. Co-op students are considered employees of the employer and, when students are
compensated, all federal and state laws and regulations apply. Id 17.Co-op employers are therefore
responsible for withholding all deductions required by federal and state income tax laws from the
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wages of Co-op student employees. Id As such, it is normal, and Drexel's expected practice, that the
employer require Co-op students to complete IRS Form W-4' s and that the employer provide them
with IRS Form W-2's. Id
23. The Co-op students are required to abide by the employer's policies, procedures and
holiday calendar and they do not follow the Drexel academic calendar during their employment. Id
,s.
24. The Co-op Program is designed so that Co-op students do not merely assist or
complement other employees, rather they perform job duties comparable to other employees and are
treated as full-time employees with job responsibilities reflective of that title. Id. ,9.
25. Drexel does not place students with certain employers or make any other substantive
decisions on behalf of the employers or students regarding Co-op students' employment. Id. i"fl
0.
26. The extent of Drexel's involvement is limited to its online Steinbright Career
Development Center recruiting system ("SCDConline"). Id After employers post their jobs to
SCDConline, Co-op students respond to the posting by providing the required materials and
information requested by the employer (resume, cover letter, etc.), and employers then offer interviews
to students. Id Whether or not a student is offered an interview by an employer or is ultimately hired
by the employer is completely the employer's decision. Id In the same regard, whether a student
accepts a job offer from an employer is the student's independent decision. Id
27. Drexel advises Co-op employers that they are responsible for complying with all
federal, state and local workplace safety regulations. Id ,11. Drexel also advises the employers that
they are responsible for providing Co-op students with the same safety training as full-time employees
if necessary. Id Drexel requires all Co-op employers to enter into an employer agreement, which sets
forth Drexel's expectations and requirements for the employer in its participation in the Co-op
program. Id.
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Jaiden Industries, Inc.'s Participation in the Co-op Program
28. Jaidan Industries, Inc. ("Jaidan") participated in Drexel's Co-op Program as an
employer from September 2009 to August 2018. See Sladen Aff. ,rt2.
29. On February 20, 2018, Jaidan signed the aforementioned employer agreement (the
"Employer Agreement"), a copy of which is attached to the Sladen Aff. as Exhibit A. The Employer
Agreement sets forth Drexel's expectations and requirements for Jaidan in its participation in the Co-
op Program. See Sladen Aff. ,rt2.
30. The Employer Agreement advised Jaidan of the applicability of federal and state laws
relating to the hiring of Co-op students and relating to the employment relationship, including the Fair
Labor Standards Act, and policies regulated by the US Department of Justice and the Equal
Employment Opportunity Commission. See Sladen Aff., Ex. A, ,r,r10-11.The Employer Agreement
also advises that any contracts or agreements between Jaidan and Co-op employees are independent
of Drexel. See Sladen Aff., Ex. A, ,rt3.
31. Notably, the Employer Agreement advises that the Co-op employer is "responsible for
knowing and complying with any applicable statutory, regulatory or other restrictions on the duties
that may be performed by co-op students." See Sladen Aff., Ex. A, ,r12.
32. Drexel never advised Jaidan, verbally, in a written agreement, certification or
otherwise, that the Co-op Program was an internship or that Drexel would be involved in the training,
hiring, supervision or oversight of the Co-op students' employment with Jaidan. See Sladen Aff. ,rt3.
To the contrary, and as can be seen in the Employer Agreement, it was made very clear to Jaidan that
students in their employ are to be treated as Jaidan's employees, and that Jaidan is therefore
responsible for the students and compliance with all applicable laws relating to their employment. See
Sladen Aff. ,r13and Sladen Aff., Ex. A, ,r,r9-13.
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Alexander LaComba and Jose ph Theoharakis' Co-o p Employment with Jaidan
33. Mr. LaComba and Mr. Theoharakis were Drexel students who participated in the Co-
op Program in 2018. See Sladen Aff. 114.
34. In early 2018, Jaidan posted a job opportunity on Drexel's SCDConline, a copy of
which is attached to the Sladen Aff. as Exhibit B. The job posting was for a Junior Engineer position
and advised that the employment would be for six months. See Sladen Aff., Ex. B, p. 2. The job posting
advertised the employment opportunity as a paid position. Id. p. 3. The job posting also advised that
interviews would be conducted via telephone, and instructed interested applicants to email Jaidan
directly to request an interview. Id. p. 3.
35. Mr. LaComba and Mr. Theoharakis applied to Jaidan's job posting and, thereafter,
Jaidan independently interviewed and hired both students. See Sladen Aff. 116. Jaidan assessed
whether Mr. LaComba and Mr. Theoharakis had the training and skills necessary for the job and its
determination that they did was solely made by Jaidan. Id.
36. Thus, beyond Jaidan utilizing Drexel's SCDConline forum to post its job posting,
Drexel was not involved in the interview or hiring process between Jaidan and Mr. LaComba or Jaidan
and Mr. Theoharakis. Id. 117.
37. Mr. LaComba and Mr. Theoharakis were employed by Jaidan from on or about April
2, 2018 to August 1, 2018. Id. 118. Jaidan is located in Port Washington, New York, approximately
130 miles away from Drexel's campus. Id. As such, Mr. LaComba and Mr. Theoharakis did not reside
on or near Drexel's campus during their employment with Jaidan, nor were they required to attend any
academic classes on Drexel's campus during their employment with Jaidan. Id.
38. Mr. LaComba and Mr. Theoharakis were treated as Jaidan full-time employees and
were required to abide by Jaidan's procedures, policies and work calendar. Id. 119. Neither student
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had any Drexel academic-related responsibilities during the course of their Co-op employment with
Jaidan. Id.
39. Mr. LaComba and Mr. Theoharakis were compensated by Jaidan and worked full-time
hours. Specifically, they were paid $15 per hour and worked 35-hour work weeks. Id. ,r20.
40. It is Drexel's understanding that Jaidan required Mr. LaComba and Mr. Theoharakis to
not merely assist or complement other Jaidan employees, rather they had work duties comparable to
other full-time employees. Id. ,r21.
41. Drexel did not instruct or direct Mr. LaComba or Mr. Theoharakis to operate forklifts
while they were employed by Jaidan. Id. ,r22. Drexel had no knowledge that Mr. LaComba or Mr.
Theoharakis would be required to operate forklifts while they were employed by Jaidan, and Jaidan
provided no such notice to Drexel. Id.
ARGUMENT
42. Here, as demonstrated by the factual record set forth above, and discussed in detail in
the accompanying Memorandum of Law, the Court should grant summary judgment in Drexel's favor,
dismissing all of Plaintiffs claims against it, because there is no basis to hold Drexel liable for this
work-place accident.
43. Mr. LaCombaand Mr. Theoharakis were employees of Jaidan on the date of the alleged
work-place accident and Plaintiff has alleged that they injured him while they were acting within the
scope of their employment. Thus, as a matter of law, only Jaidan can be held vicariously liable for
their conduct.
44. Drexel had no direction or control over the terms, conditions or day-to-day work of Mr.
LaComba or Mr. Theoharakis relating to their employment with Jaidan and in fact shifted all such
responsibility to Jaidan by way of written agreement. See Sladen Aff., Ex. A.
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45. Moreover, any question as to whether Mr. LaComba and Mr. Theoharakis were
employees or interns is answered by one fact: Mr. LaComba and Mr. Theoharakis were paid by Jaidan.
Specifically, they were both paid $15 per hour and they worked 35-hour works weeks. See Sladen Aff.
,I20. These facts, alone, demonstrate that they were employees of Jaidan.
46. In addition to the fact that they were compensated, the circumstances of Mr. LaComba
and Mr. Theoharakis' employment with Jaidan further demonstrates that they were employees and not
interns because Jaidan was the primary beneficiary of the relationship.
47. There is therefore no basis to hold Drexel vicariously liable for this alleged work-place
accident.
48. Plaintiffs negligent supervision and training cause of action also fails as a matter of
law because Drexel was not Mr. LaComba or Mr. Theoharakis' employer. Thus, Plaintiff cannot
satisfy the essential element of a negligent supervision/training cause of action: an employer-employee
relationship between the tort-feasor and the defendant.
49. Plaintiff also cannot show that Drexel owed him a legal duty of care, nor that Drexel
knew or should have known that Mr. LaComba and Mr. Theoharakis would engage in the conduct
Plaintiff alleges injured him.
WHEREFORE, Defendant DREXEL UNIVERSITY respectfully requests that this Court
issue an Order:
(a) Pursuant to CPLR 3212 granting Drexel University summary judgment and dismissing all
claims asserted against it; and
(b) For such other and further relief as this Court deems just and proper.
Dated: New York, New York
August 22, 2019
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FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --- ------------------------------------------------------------X CHRISTOPHER SAGER, Plaintiff, Index No.: 601516/2019 - against - AFFIRMATION IN SUPPORT OF DREXEL UNIVERSITY'S MOTION FOR SUMMARY JUDGMENT FRONTPAGE INVESTMENTS d/b/a YOUSEF HABIBIAN AND DREXEL UNIVERSITY, Defendants. ----------------------------------------------------------------X GEORGE P. CORNELL, an attorney duly admitted in the Courts of the State of New York, affirms the truth of the following under penalties of perjury: 1. I am an associate of the law firm Biedermann Hoenig Semprevivo, a Professional Corporation, attorneys for defendant DREXEL UNIVERSITY ("Drexel"). As such, I am familiar with the facts, circumstances, pleadings, and proceedings heretofore had herein. 2. This affirmation, along with the exhibits attached hereto and accompanying memorandum oflaw, is respectfully submitted in support of Drexel's Motion for an Order: (1) granting it summary judgment, pursuant to CPLR § 3212, dismissing all claims against it, with prejudice; and (2) for such other and further relief as the Court deems just and proper. PRELIMINARY STATEMENT 3. This is an action for personal injury allegedly sustained on August 1, 2018, when the plaintiff, Christopher Sager ("Plaintiff'), was caused to be injured while in the course of his employment with Jaidan Industries, Inc. ("Jaidan"). Plaintiff claims he was struck by a forklift operated by co-employees Alex LaComba ("Mr. LaComba") and Joseph Theoharakis ("Mr. Theoharakis"), during the course of their employment with Jaidan. 1 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 4. Mr. LaComba and Mr. Theoharakis were employed full-time by Jaidan as students participating in Drexel's Cooperative Education Program (the "Co-op Program") on the date of the alleged accident. Plaintiff asserts that Drexel should be held liable for the conduct of the Mr. LaComba and Mr. Theoharakis under theories of vicarious liability and negligent supervision and training. 5. Plaintiffs claims against Drexel fail because Mr. LaComba and Mr. Theoharakis were employees of Jaidan on the date of loss and not employed by Drexel. There is therefore no basis to hold Drexel vicariously liable for the conduct of these individuals since they were never employed by Drexel. 6. For that same reason, Plaintiff cannot hold Drexel liable for negligent supervision or training; only Jaidan, Mr. LaComba and Mr. Theoharakis' employer, may be held liable for such a claim. Moreover, Jaidan assumed all responsibility, supervision and control over both students relating to their employment with Jaidan, evidenced by a written agreement between Jaidan and Drexel. Thus, the only party that can be held liable for Mr. LaComba's and Mr. Theoharakis' conduct as Jaidan employees is Jaidan. However, since Plaintiff has received workers' compensation benefits from Jaidan, he cannot sue Jaidan, and is now impermissibly seeking additional recovery from Drexel. 1 7. Despite the incontrovertible facts that Mr. LaComba and Mr. Theoharakis were Jaidan employees and not under the supervision, control or direction of Drexel, facts which very obviously preclude any claim against Drexel for this alleged work-place accident, a close reading of Plaintiffs Complaint reveals that Plaintiff attempts to circumvent the law by improperly characterizing the students as "interns." In doing so, Plaintiff is trying to hold Drexel liable for the students' conduct as Drexel interns. This tactic fails because the Co-op Program is not an internship program. As it relates 1 Curiously, Plaintifffiled a separate action against Jaidan's principals, Richard and Rhonda Sussman, in this court on August 23, 2018, captioned Christopher Sager v. Richard Sussman and Rhonda Sussman, under Index Number 611425/2018. It is clear Plaintiff is seeking any and all additional recovery on top of his workers' compensation benefits. 2 2 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 to this case specifically, Mr. LaComba and Mr. Theoharakis' full-time,paid employment with Jaidan was certainly not an internship, nor was it supervised or controlled by Drexel. 8. Based upon these facts, there is simply no basis upon which Drexel can be held liable for the work-place accident that allegedly injured Plaintiff 130 miles away from Drexel's campus. Plaintiff's causes of action against Drexel are a baseless attempt to seek an additional avenue for recourse. Given the undisputed facts, Plaintiffs causes of action against Drexel must be dismissed as a matter oflaw. PROCEDURAL HISTORY 9. Plaintiff commenced this action by filing his Summons and Verified Complaint in the Supreme Court, Nassau County, on March 28, 2019, asserting claims against co-defendant Frontpage Investments d/b/a Yousef Habibian ("Frontpage") and Drexel. See Ex. A. 10. Issue was joined by the service of Drexel's Verified Answer, which asserted cross- claims against Frontpage, on May 17, 2019. See Ex. B. 11. Frontpage filed its Verified Answer on March 13, 2019. See Ex. C. 12. On or about July 16, 2019, Plaintiff served his Verified Bill of Particulars on Drexel. See Ex. D. STATEMENT OF MATERIAL FACTS 13. Plaintiff alleges that on August 1, 2018, while in the course of his employment, he was caused to be injured when a fork-truck and its appurtenances struck him. See Ex. A ,r20. 14. The alleged accident occurred at 154 Haven Avenue, Port Washington, New York 11050, property owned by co-defendant Frontpage. See Ex. C ,r1. 15. According to Plaintiffs Verified Bill of Particulars, Jaidan owned the forklift that struck him, and it was being operated by "a student" from Drexel. See Ex. D ,r10.Plaintiff alleges that the forklift's "lift mast" fell on his left foot. Id. ,r,r11,20. Plaintiff's Complaint also alleges that the 3 3 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 accident was caused by a defect on the premises and therefore asserts liability against Frontpage for his alleged injury. See Ex. A 121. 16. Plaintiff alleges that Drexel is vicariously responsible for Mr. LaComba and Mr. Theoharakis' negligent operation, maintenance, management and control of the forklift. See Ex. A 159. Plaintiff further alleges that Drexel was negligent in failing to properly assess the work that its students would be doing and in failing to properly train or educate its students as to the proper operation of fork-trucks. Id 160. Drexel's Cooperative Education Program 17. On the date of the alleged accident, the Mr. LaComba and Mr. Theoharakis were employed by Jaidan. They received the opportunity to apply for their employment with Jaidan through Drexel's Co-op Program. 18. The Drexel Co-op Program provides Drexel students with the opportunity to gain full- time employment while enrolled at Drexel. Thus, rather than working part-time or only a couple of days a week while still attending regular classes, Drexel Co-op students dedicate their full time to their employment. See Affidavit of Ian Sladen ("Sladen Aff. "), annexed hereto as Exhibit E, at 13. 19. Students do not receive a tuition bill while participating in the Co-op Program, they only pay a student activity fee for each term that they are employed in a Co-op job. Id ,4. 20. Co-op students are normally employed for a longer duration than a normal Drexel quarter, with most Co-op employments lasting up to 6 months. Id 15. 21. Over 80% of Co-op jobs are paid and Drexel encourages Co-op employers to pay Co- op students wages comparable to other employees having similar responsibilities. Id 16. 22. Co-op students are considered employees of the employer and, when students are compensated, all federal and state laws and regulations apply. Id 17.Co-op employers are therefore responsible for withholding all deductions required by federal and state income tax laws from the 4 4 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 wages of Co-op student employees. Id As such, it is normal, and Drexel's expected practice, that the employer require Co-op students to complete IRS Form W-4' s and that the employer provide them with IRS Form W-2's. Id 23. The Co-op students are required to abide by the employer's policies, procedures and holiday calendar and they do not follow the Drexel academic calendar during their employment. Id ,s. 24. The Co-op Program is designed so that Co-op students do not merely assist or complement other employees, rather they perform job duties comparable to other employees and are treated as full-time employees with job responsibilities reflective of that title. Id. ,9. 25. Drexel does not place students with certain employers or make any other substantive decisions on behalf of the employers or students regarding Co-op students' employment. Id. i"fl 0. 26. The extent of Drexel's involvement is limited to its online Steinbright Career Development Center recruiting system ("SCDConline"). Id After employers post their jobs to SCDConline, Co-op students respond to the posting by providing the required materials and information requested by the employer (resume, cover letter, etc.), and employers then offer interviews to students. Id Whether or not a student is offered an interview by an employer or is ultimately hired by the employer is completely the employer's decision. Id In the same regard, whether a student accepts a job offer from an employer is the student's independent decision. Id 27. Drexel advises Co-op employers that they are responsible for complying with all federal, state and local workplace safety regulations. Id ,11. Drexel also advises the employers that they are responsible for providing Co-op students with the same safety training as full-time employees if necessary. Id Drexel requires all Co-op employers to enter into an employer agreement, which sets forth Drexel's expectations and requirements for the employer in its participation in the Co-op program. Id. 5 5 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 Jaiden Industries, Inc.'s Participation in the Co-op Program 28. Jaidan Industries, Inc. ("Jaidan") participated in Drexel's Co-op Program as an employer from September 2009 to August 2018. See Sladen Aff. ,rt2. 29. On February 20, 2018, Jaidan signed the aforementioned employer agreement (the "Employer Agreement"), a copy of which is attached to the Sladen Aff. as Exhibit A. The Employer Agreement sets forth Drexel's expectations and requirements for Jaidan in its participation in the Co- op Program. See Sladen Aff. ,rt2. 30. The Employer Agreement advised Jaidan of the applicability of federal and state laws relating to the hiring of Co-op students and relating to the employment relationship, including the Fair Labor Standards Act, and policies regulated by the US Department of Justice and the Equal Employment Opportunity Commission. See Sladen Aff., Ex. A, ,r,r10-11.The Employer Agreement also advises that any contracts or agreements between Jaidan and Co-op employees are independent of Drexel. See Sladen Aff., Ex. A, ,rt3. 31. Notably, the Employer Agreement advises that the Co-op employer is "responsible for knowing and complying with any applicable statutory, regulatory or other restrictions on the duties that may be performed by co-op students." See Sladen Aff., Ex. A, ,r12. 32. Drexel never advised Jaidan, verbally, in a written agreement, certification or otherwise, that the Co-op Program was an internship or that Drexel would be involved in the training, hiring, supervision or oversight of the Co-op students' employment with Jaidan. See Sladen Aff. ,rt3. To the contrary, and as can be seen in the Employer Agreement, it was made very clear to Jaidan that students in their employ are to be treated as Jaidan's employees, and that Jaidan is therefore responsible for the students and compliance with all applicable laws relating to their employment. See Sladen Aff. ,r13and Sladen Aff., Ex. A, ,r,r9-13. 6 6 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 Alexander LaComba and Jose ph Theoharakis' Co-o p Employment with Jaidan 33. Mr. LaComba and Mr. Theoharakis were Drexel students who participated in the Co- op Program in 2018. See Sladen Aff. 114. 34. In early 2018, Jaidan posted a job opportunity on Drexel's SCDConline, a copy of which is attached to the Sladen Aff. as Exhibit B. The job posting was for a Junior Engineer position and advised that the employment would be for six months. See Sladen Aff., Ex. B, p. 2. The job posting advertised the employment opportunity as a paid position. Id. p. 3. The job posting also advised that interviews would be conducted via telephone, and instructed interested applicants to email Jaidan directly to request an interview. Id. p. 3. 35. Mr. LaComba and Mr. Theoharakis applied to Jaidan's job posting and, thereafter, Jaidan independently interviewed and hired both students. See Sladen Aff. 116. Jaidan assessed whether Mr. LaComba and Mr. Theoharakis had the training and skills necessary for the job and its determination that they did was solely made by Jaidan. Id. 36. Thus, beyond Jaidan utilizing Drexel's SCDConline forum to post its job posting, Drexel was not involved in the interview or hiring process between Jaidan and Mr. LaComba or Jaidan and Mr. Theoharakis. Id. 117. 37. Mr. LaComba and Mr. Theoharakis were employed by Jaidan from on or about April 2, 2018 to August 1, 2018. Id. 118. Jaidan is located in Port Washington, New York, approximately 130 miles away from Drexel's campus. Id. As such, Mr. LaComba and Mr. Theoharakis did not reside on or near Drexel's campus during their employment with Jaidan, nor were they required to attend any academic classes on Drexel's campus during their employment with Jaidan. Id. 38. Mr. LaComba and Mr. Theoharakis were treated as Jaidan full-time employees and were required to abide by Jaidan's procedures, policies and work calendar. Id. 119. Neither student 7 7 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 had any Drexel academic-related responsibilities during the course of their Co-op employment with Jaidan. Id. 39. Mr. LaComba and Mr. Theoharakis were compensated by Jaidan and worked full-time hours. Specifically, they were paid $15 per hour and worked 35-hour work weeks. Id. ,r20. 40. It is Drexel's understanding that Jaidan required Mr. LaComba and Mr. Theoharakis to not merely assist or complement other Jaidan employees, rather they had work duties comparable to other full-time employees. Id. ,r21. 41. Drexel did not instruct or direct Mr. LaComba or Mr. Theoharakis to operate forklifts while they were employed by Jaidan. Id. ,r22. Drexel had no knowledge that Mr. LaComba or Mr. Theoharakis would be required to operate forklifts while they were employed by Jaidan, and Jaidan provided no such notice to Drexel. Id. ARGUMENT 42. Here, as demonstrated by the factual record set forth above, and discussed in detail in the accompanying Memorandum of Law, the Court should grant summary judgment in Drexel's favor, dismissing all of Plaintiffs claims against it, because there is no basis to hold Drexel liable for this work-place accident. 43. Mr. LaCombaand Mr. Theoharakis were employees of Jaidan on the date of the alleged work-place accident and Plaintiff has alleged that they injured him while they were acting within the scope of their employment. Thus, as a matter of law, only Jaidan can be held vicariously liable for their conduct. 44. Drexel had no direction or control over the terms, conditions or day-to-day work of Mr. LaComba or Mr. Theoharakis relating to their employment with Jaidan and in fact shifted all such responsibility to Jaidan by way of written agreement. See Sladen Aff., Ex. A. 8 8 of 9 FILED: NASSAU COUNTY CLERK 08/22/2019 05:29 PM INDEX NO. 601516/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/22/2019 45. Moreover, any question as to whether Mr. LaComba and Mr. Theoharakis were employees or interns is answered by one fact: Mr. LaComba and Mr. Theoharakis were paid by Jaidan. Specifically, they were both paid $15 per hour and they worked 35-hour works weeks. See Sladen Aff. ,I20. These facts, alone, demonstrate that they were employees of Jaidan. 46. In addition to the fact that they were compensated, the circumstances of Mr. LaComba and Mr. Theoharakis' employment with Jaidan further demonstrates that they were employees and not interns because Jaidan was the primary beneficiary of the relationship. 47. There is therefore no basis to hold Drexel vicariously liable for this alleged work-place accident. 48. Plaintiffs negligent supervision and training cause of action also fails as a matter of law because Drexel was not Mr. LaComba or Mr. Theoharakis' employer. Thus, Plaintiff cannot satisfy the essential element of a negligent supervision/training cause of action: an employer-employee relationship between the tort-feasor and the defendant. 49. Plaintiff also cannot show that Drexel owed him a legal duty of care, nor that Drexel knew or should have known that Mr. LaComba and Mr. Theoharakis would engage in the conduct Plaintiff alleges injured him. WHEREFORE, Defendant DREXEL UNIVERSITY respectfully requests that this Court issue an Order: (a) Pursuant to CPLR 3212 granting Drexel University summary judgment and dismissing all claims asserted against it; and (b) For such other and further relief as this Court deems just and proper. Dated: New York, New York August 22, 2019 9 9 of 9