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NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------- X
CHRISTOPHER SAGER, Index No.: 601516/2019
Plaintiff, AFFIRMATION
IN OPPOSITION
- against -
FRONPAGE INVESTMENTS d/b/a YOUSEF Hon.
HABIBIAN and DREXEL UNIVERSITY,
Defendants. Return Date: 10/31/19
--- ------------------------ X
MONICA P. BECKER, ESQ., an attorney duly admitted to practice law in the Courts of
the State of New York, hereby affirms the truth of the following under penalties of perjury, upon
information and belief:
1. I am an associate for the law firm of Edelman, Krasin & Jaye, PLLC, attorneys for the
Plaintiff herein, and as such I am fully familiar with the facts and circumstances of the
above captioned action.
2. This affirmation is submitted in opposition to Defendant DREXEL UNIVERSITY's
("Drexel") motion for summary judgment.
3. Briefly, this action arises out of an accident which occurred on August 1, 2018, when the
liftmast of a forklift, operated by a student from Drexel University, fell on Plaintiff's foot,
while Plaintiff was working for Jaiden Industries at 154 Haven Avenue, Port Washington,
"A"
New York 11050. See Defendant's Exhibit and "D".
ARGUMENT
4. Initially, Drexel's motion must be denied as premature. Discovery has not yet been
conducted, and therefore facts essential to the opposition of Drexel's motion are presently
(2nd
unknown to Plaintiff. Marcus Dairy v. Jacene Realty Corp., 245 A.D.2d 493
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1997). Plaintiff would be severely prejudiced in the defense of the instant motion without
the opportunity to conduct discovery and depose pertinent witnesses.
5. It is well settled that the granting of a motion for summary judgment is a drastic remedy.
Andre v. Pomeroy,35 N.Y.2d 361, 364 (1974).
6. Summary judgment is only appropriate where the moving party has established that there
are no triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,
404 (1957). The proponent of a summary judgment motion "must make a prima facie
showing of entitlement as a matter law, tendering sufficient evidence to eliminate any
case."
material issues of fact from the Winegard v. NYU Med. Ctr., 64 N.Y.2d 851, 853
(N.Y 1985). Summary judgment is a drastic remedy and should not be granted where there
"arguable."
is any doubt as to the existence of such issues, or where the issue is Id. The role
of the Court is issue-finding, rather than issue-determination. Id; Roth v. Barreto, 289
A.D.2d 557 (2d Dept. 2001); Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978); Stone v.
Goodson, 8 N.Y 2d 8 (1960); Sillman supra.
7. This burden is not met by merely citing gaps in the plaintiff's case. Mondello v. DiStefabno,
16 A.D.3d 637 (2d Dept. 2005); O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542 (2d Dept.
2004); see also Sabalza v. Salgado, 85 A.D.3d 436 (1st Dept. 2011). The defendant must
affirmatively demonstrate the merit of its defense. Suryian v. Romana, Inc., 305 A.D.2d
400 (2d Dept. 2003).
8. Negligence cases are often inappropriate for summary judgment, as the issue of whether
the defendant acted reasonably under the circumstances is rarely an issue that can be
decided as a matter of law. Ugarizza v. Schmeider, 46 N.Y.2d 471 (1979). The
determination of a defendant's negligence is for the trier of fact to decide. Gordon v. City
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of New York, 70 N.Y.2d 839, 841 (1987); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507
(1980).
9. Where the defendant fails to meet its prima facie burden, the motion must be denied
regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68
N.Y.2d 320 (1986); Staubitz v. Yaser, 41 A.D.3d 698, 700 (2d Dept. 2007); Chaplin v.
Taylor, 273 A.D.2d 188 (2d Dept. 2000).
10. In the event the defendant meets its burden, the evidence submitted by the non-moving
party must be accepted as true, and the non-moving party must be given the benefits of all
favorable inferences which may be drawn therefrom. City Line Rent a Car, Inc. v. Alfess
Realty, LLC, 33 A.D.3d 835 (2d Dept. 2006); Demshick v. Community Hous. Mgt. Corp.,
34 A.D.3d 518, 520 (2d Dept. 2006); Marine Midland Bank NA v. Dino & Artie's
Automatic Transmission Co., 563 N.Y.S.2d 449 (2d Dept. 1990); Roth supra.
11. Accordingly, a motion for summary judgment should not be granted where conflicting
inferences may be drawn from the evidence, or where there are issues of credibility. Id.
12. It is well settled that the court is not to determine credibility on a motion for summary
judgment. S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338 (1974); Glick
& Dolleck Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Krupp v. Aetna Life &
Casualty Co., 103 A.D.2d 252 (2d Dept. 1984). Credibility is to be resolved by the jury in
weighing the evidence and drawing legitimate inferences therefrom. Id.
13. Further, questions of proximate cause and foreseeability should also be resolved by the
jury. Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308, 315 (1980).
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L DREXEL HAS FAILED TO ESTABLISH. PRIMA_FACIE_, THAT THEY
DID NOT EXERT CONTROL OVER THE COOPERATIVE EDUCATION
OF ITS STUDENTS_BY EMPLOYER-PARTNER JAIDAN
14. Itis well established that in order to hold a principal vicariously liable for an agent, the
(1st
fundamental test is that of control. Pekelnaya v. Allyn, 25 AD3d 111 Dept. 2005). To
this end, "a principal-agency relationship exists where one retains a degree of direction and
other."
control over the Id.
15. Further, the Second Department has recognized that "[w]here the circumstances alleged in
the pleading 'raise the possibility of a principal-agent relationship'...questions as to the
jury."
existence and scope of the agency must be submitted to the Maurillo v Park Slope
U-Haul, 194 AD2d 142, 147 (2d Dept 1993).
16. The Affidavit of Ian Sladen submitted in support of Drexel's motion are insufficient to
eliminate allquestions of fact as to the extent of Drexel's involvement or control over Mr.
Theoharakis'
LaComba's and Mr. co-op employment with Jaidan. See Drexel's Exhibit
17. Specifically, the Affidavit of Mr. Sladen, fails to address pertinent issues such as, how itis
determined that a student will be involved in the co-op program; whether co-op
employment is necessary to graduate; how many co-op employment rotations a student is
required to do; and how Drexel determines which employers to invite to participate in the
program. Inevitably, his Affidavit surely failed to include essential information, even
beyond the basic facts exemplified here.
18. Notably, a simple examination of the Drexel website provides information beyond that
which Mr. Sladen's Affidavit addresses and in some instances contrary to his statements.
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See printed pages of the Drexel University website attached hereto as Plaintiff's Exhibit
"A".
19. According to the information provided on the website, "[c]o-op students are considered
full-time students while employed and are subject to the same policies as if attending class
campus."
on Drexel University, Co-op Information for Employers & Companies,
Becoming A Co-Op Employer, https://drexel.edu/difference/co-op/employer/; see also
Exhibit "A".
20. Drexel co-op students "alternate six-month periods of full-time study with full-time
employers."
employment at University-approved Drexel University, The Drexel
Cooperative How https://drexel.edu/difference/co-
Difference, Education, Co-op Works,
op/how-co-op-works/; see also Exhibit "A". Moreover, a certain number of co-ops is
required for graduation depending on the student's curriculum. Id.
21. Drexel's curriculum is then adapted based on student's co-op experiences and feedback.
Drexel "ask[s] students retuming from co-op what they learned. [Drexel] ask[s] employers
know."
that hire [their] students what those students need to DrexelUniversity,Co-opOne
Hundred, The Classroom/Workplace Connection, How do we know our curriculum
matches the needs the https://drexel.edu/co-op100/learn/classroom-
of workplace?,
workplace-connection/;seealso Exhibit "A".
22. Moreover, a review of the Employer Agreement submitted with Mr. Sladen's Affidavit
establishes the deeper connection of Drexel to their "employer partners". See Defendant's
Exhibit "E". The Agreement, in pertinent part, states the following:
• "The Steinbright Career Development Center at Drexel is responsible
(Steinbright)
students' experiences..."
for monitoring co-op
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• employer partners, students and Drexel -work together to maintain
"...[c]o-op
open communication throughout the co-op experience, establish clear goals and
arise."
expectations, and proactively address any issues that
• employer partners must provide Steinbright with a written description of
"Co-op
duties."
the co-op student's
• "...Steinbright professional staff from time to time request to visit locations
may
where co-op students are working to meet organization representatives and to
ensure that students and co-op employer partners are receiving optimal benefits
from the co-op program.
23. The Employer Agreement also confirms that co-op students earn credit while working for
the employer partner. Id.
24. Here, Drexel has failed to establish that itdid not exert control over the employment of its
students by its"employer partners". In fact, the evidence submitted with Mr. Sladen's
Affidavit, together with Drexel's website, establishes that Drexel did exert control over
which employers were involved in the coop program, the goals and expectations of the
work to be done by its students, monitoring of its student's experiences, the duties to be
students.1
performed by its students, and resolution of work place issues had by its
25. Moreover, the agency relationship between Drexel and its students and Drexel's liability
stemming therefrom is a question to be resolved by a jury. Maurillo, supra.
Again, it should be noted that without any discovery, due to the pre-mature nature of this
motion for summary judgment, Plaintiff is severely prejudiced in the defense of the instant
motion.
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26. As Drexel has failed to establish that they did not exert control over the employment of
"employer-partner"
their students by the Jaidan, Drexel has failed to establish that they are
not vicariously liable for the acts of their student/employees.
"INTERNS"
II. _WHETHE_R DREXEL'S STUDENTS ARE CONSIDERED OR
"EMPLOYEES"
FOR THE PURPOSES OF FAIR WAGE PRACTICES IS
NOT DETERMINATIVE AS TO THEIR VICARIOUS LIABILITY FOR
THEIR NEGLIGENT ACTS.
"interns" "employees"
27. The determination of whether Drexel's students were or as itrelates
to the Fair Labor Standards Act and New York Labor Law is not determinative as to
whether Drexel, who exhibited control over their work and placement with Jaidan through
the cooperative education program, is vicariously liable for their negligent acts.
test"
28. While the Glatt v. Fox Searchlight Pictures, Inc. "primary beneficiary can be
informative to the instant case, it is not controlling. In Glatt, the Plaintiffs sought
compensation as employees under the Fair Labor Standards Act and New York Labor Law.
Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536 (2d Cir. 2016). Accordingly, the
factors outlined in Glatt were in contemplation of whether a worker should receive the
minimum wage and other protections afforded under the FLSA and NYLL. Id.
29. It does not follow that just because a worker might be determined to be an employee for
purposes of being paid a wage that the worker, as a student, is not under any control or
direction from an educational program that they are currently enrolled in.
30. Notwithstanding the above, Drexel improperly alleges that the determination under Glatt
begins and ends with the firstfactor regarding compensation. However, the Court in Glatt
explicitly stated that "[n]o one factor is dispositive and every factor need not point in the
same direction for the court to conclude that the intern is not an employee entitled to the
minimum wage". Id at 537. The court went on to that the proffered list was non-
say
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exhaustive and that "a court may elect in certain cases ...to consider evidence about an
intern."
internship program as a whole rather than the experience of a specific Id.
31. In considering the remaining factors suggested by the court inGlatt, Drexel's analysis is
amiss. The students work with Jaidan specifically provided training to complement the
academic program they were enrolled in at Drexel. In fact, this is the distinct and unique
nature of a cooperative educational program. The student's work with Jaidan was a
necessary component of their formal education, inasmuch as they received credit for their
time at Jaidan and same was required to graduate.
32. Moreover, despite Defendant's allegations to the contrary, their six month cycle with
Jaidan was directly correlated to the academic calendar, in that "Drexel's academic
calendar is based on a quarter system, and a student's co-op cycle determines which
co-op"
quarters they will go on and "they alternate periods of full-time study with full-time
employment at University approved employers".
33. Also, as stated above, , "[c]o-op students are considered full-time students while employed
campus."
and are subject to the same policies as if attending class on DrexelUniversity,
Co-op Information for Employers & Companies, Becoming A Co-Op Employer,
https://drexel.edu/difference/co-op/employer/;seealso Exhibit "A".
34. Defendant attempts to mislead this court in asserting that their employment term was "a
longer period than a normal Drexel quarter". See Cornell Memorandum of Law at page 8.
Additionally, Defendant's assertion that these students expected a job offer at the
conclusion of the co-op employment is completely speculative and baseless. Id. Simply
students'
because other co-op were offered employment does not necessarily create an
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"entitlement"
expectation of a job offer. Moreover itcertainly doesn't set forth an to a job
offer. See Glatt, supra.
35. Defendant's reliance on the test in Glatt to determine that their students were an employee
entitled to fair wages is not determinative as to whether they are vicariously liable for their
negligent acts. Further, Defendant has failed to establish that, considering all of the
evidence, the students were not "interns".
III. DEFENDANT HAS FAILED TO ESTABLISH. PRIMA FACIE, THAT
THEY WERE NOT NEGLIGENT IN THE SUPERVISION OR TRAINING
OF ITS STUDENTS
36. It is again brought to the Court's attention that without further discovery Plaintiff is
prejudiced in defending the instant motion and as such, Drexel's motion should be denied
as pre-mature.
37. Defendants have failed to establish that the relationship with the student tortfeasors did not
amount to a principal agent relationship, similar to that of an employee-employer
relationship. As discussed above, Drexel retained control over the placement, duties and
performance of itsstudents when working with their "employer-partners".
38. Further, Drexel failed to establish that they did not know, or should not have known that
itsstudents would be operating forklifts as part of their cooperative work with Jaidan.
39. Drexel's reliance on the job listing by Jaidan is unavailing. As evidenced by the
"Employment Agreement", "[t]he Steinbright Career Development Center (Steinbright) at
students'
Drexel is responsible for monitoring co-op experiences...". Further, Drexel
retained the right to visit the locations of employer-partners.
40. Moreover, according to Drexel's academic model, students returning from their co-op
cycles share their experiences. As it isclear that Jaidan has been an employer-partner for
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previous cycles, it isfeasible that students have reported back regarding their experience
that their duties included the use of forklifts.
41. Accordingly, as Drexel retained a principal-agent relationship with itsstudents while they
"employer-partner"
were engaged in the cooperative education program with its and they
knew or should have known that the student tortfeasors would be operating fork lifts,
Drexel has failed to establish, prima facie, that they were not negligent in the supervision
or training of the students.
WHEREFORE, it is respectfully requested that Defendant's motion be denied in its
entirety.
Dated: Westbury, New York
October 23, 2019
Respectfully Submitted,
EDELMAN, KRASIN & JAYE, PLLC
Monica P. Becker, Esq.
Attorneys for Plaintiff
7001 Brush Hollow Road, Suite 100
Westbury, New York 11590
(516) 742-9200
TO: BIEDERMANN HOENIG SEMPREVIVO
A Professional Corporation
Attorneys for Defendant
DREXEL UNIVERSITY
42nd
60 East Street, Suite 600
New York, NY 10165
646-218-7560
KENNETH B. MOCK, ESQ. .
Attorney for Defendant
FRONTPAGE INVESTMENTS d/b/a YOUSEF HABIBIAN
100 Main Street, 96A
Hempstead, NY 11550
516-489-5397
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FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------- X CHRISTOPHER SAGER, Index No.: 601516/2019 Plaintiff, AFFIRMATION IN OPPOSITION - against - FRONPAGE INVESTMENTS d/b/a YOUSEF Hon. HABIBIAN and DREXEL UNIVERSITY, Defendants. Return Date: 10/31/19 --- ------------------------ X MONICA P. BECKER, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following under penalties of perjury, upon information and belief: 1. I am an associate for the law firm of Edelman, Krasin & Jaye, PLLC, attorneys for the Plaintiff herein, and as such I am fully familiar with the facts and circumstances of the above captioned action. 2. This affirmation is submitted in opposition to Defendant DREXEL UNIVERSITY's ("Drexel") motion for summary judgment. 3. Briefly, this action arises out of an accident which occurred on August 1, 2018, when the liftmast of a forklift, operated by a student from Drexel University, fell on Plaintiff's foot, while Plaintiff was working for Jaiden Industries at 154 Haven Avenue, Port Washington, "A" New York 11050. See Defendant's Exhibit and "D". ARGUMENT 4. Initially, Drexel's motion must be denied as premature. Discovery has not yet been conducted, and therefore facts essential to the opposition of Drexel's motion are presently (2nd unknown to Plaintiff. Marcus Dairy v. Jacene Realty Corp., 245 A.D.2d 493 1 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 1997). Plaintiff would be severely prejudiced in the defense of the instant motion without the opportunity to conduct discovery and depose pertinent witnesses. 5. It is well settled that the granting of a motion for summary judgment is a drastic remedy. Andre v. Pomeroy,35 N.Y.2d 361, 364 (1974). 6. Summary judgment is only appropriate where the moving party has established that there are no triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The proponent of a summary judgment motion "must make a prima facie showing of entitlement as a matter law, tendering sufficient evidence to eliminate any case." material issues of fact from the Winegard v. NYU Med. Ctr., 64 N.Y.2d 851, 853 (N.Y 1985). Summary judgment is a drastic remedy and should not be granted where there "arguable." is any doubt as to the existence of such issues, or where the issue is Id. The role of the Court is issue-finding, rather than issue-determination. Id; Roth v. Barreto, 289 A.D.2d 557 (2d Dept. 2001); Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978); Stone v. Goodson, 8 N.Y 2d 8 (1960); Sillman supra. 7. This burden is not met by merely citing gaps in the plaintiff's case. Mondello v. DiStefabno, 16 A.D.3d 637 (2d Dept. 2005); O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542 (2d Dept. 2004); see also Sabalza v. Salgado, 85 A.D.3d 436 (1st Dept. 2011). The defendant must affirmatively demonstrate the merit of its defense. Suryian v. Romana, Inc., 305 A.D.2d 400 (2d Dept. 2003). 8. Negligence cases are often inappropriate for summary judgment, as the issue of whether the defendant acted reasonably under the circumstances is rarely an issue that can be decided as a matter of law. Ugarizza v. Schmeider, 46 N.Y.2d 471 (1979). The determination of a defendant's negligence is for the trier of fact to decide. Gordon v. City 2 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 of New York, 70 N.Y.2d 839, 841 (1987); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980). 9. Where the defendant fails to meet its prima facie burden, the motion must be denied regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Staubitz v. Yaser, 41 A.D.3d 698, 700 (2d Dept. 2007); Chaplin v. Taylor, 273 A.D.2d 188 (2d Dept. 2000). 10. In the event the defendant meets its burden, the evidence submitted by the non-moving party must be accepted as true, and the non-moving party must be given the benefits of all favorable inferences which may be drawn therefrom. City Line Rent a Car, Inc. v. Alfess Realty, LLC, 33 A.D.3d 835 (2d Dept. 2006); Demshick v. Community Hous. Mgt. Corp., 34 A.D.3d 518, 520 (2d Dept. 2006); Marine Midland Bank NA v. Dino & Artie's Automatic Transmission Co., 563 N.Y.S.2d 449 (2d Dept. 1990); Roth supra. 11. Accordingly, a motion for summary judgment should not be granted where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Id. 12. It is well settled that the court is not to determine credibility on a motion for summary judgment. S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338 (1974); Glick & Dolleck Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Krupp v. Aetna Life & Casualty Co., 103 A.D.2d 252 (2d Dept. 1984). Credibility is to be resolved by the jury in weighing the evidence and drawing legitimate inferences therefrom. Id. 13. Further, questions of proximate cause and foreseeability should also be resolved by the jury. Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308, 315 (1980). 3 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 L DREXEL HAS FAILED TO ESTABLISH. PRIMA_FACIE_, THAT THEY DID NOT EXERT CONTROL OVER THE COOPERATIVE EDUCATION OF ITS STUDENTS_BY EMPLOYER-PARTNER JAIDAN 14. Itis well established that in order to hold a principal vicariously liable for an agent, the (1st fundamental test is that of control. Pekelnaya v. Allyn, 25 AD3d 111 Dept. 2005). To this end, "a principal-agency relationship exists where one retains a degree of direction and other." control over the Id. 15. Further, the Second Department has recognized that "[w]here the circumstances alleged in the pleading 'raise the possibility of a principal-agent relationship'...questions as to the jury." existence and scope of the agency must be submitted to the Maurillo v Park Slope U-Haul, 194 AD2d 142, 147 (2d Dept 1993). 16. The Affidavit of Ian Sladen submitted in support of Drexel's motion are insufficient to eliminate allquestions of fact as to the extent of Drexel's involvement or control over Mr. Theoharakis' LaComba's and Mr. co-op employment with Jaidan. See Drexel's Exhibit 17. Specifically, the Affidavit of Mr. Sladen, fails to address pertinent issues such as, how itis determined that a student will be involved in the co-op program; whether co-op employment is necessary to graduate; how many co-op employment rotations a student is required to do; and how Drexel determines which employers to invite to participate in the program. Inevitably, his Affidavit surely failed to include essential information, even beyond the basic facts exemplified here. 18. Notably, a simple examination of the Drexel website provides information beyond that which Mr. Sladen's Affidavit addresses and in some instances contrary to his statements. 4 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 See printed pages of the Drexel University website attached hereto as Plaintiff's Exhibit "A". 19. According to the information provided on the website, "[c]o-op students are considered full-time students while employed and are subject to the same policies as if attending class campus." on Drexel University, Co-op Information for Employers & Companies, Becoming A Co-Op Employer, https://drexel.edu/difference/co-op/employer/; see also Exhibit "A". 20. Drexel co-op students "alternate six-month periods of full-time study with full-time employers." employment at University-approved Drexel University, The Drexel Cooperative How https://drexel.edu/difference/co- Difference, Education, Co-op Works, op/how-co-op-works/; see also Exhibit "A". Moreover, a certain number of co-ops is required for graduation depending on the student's curriculum. Id. 21. Drexel's curriculum is then adapted based on student's co-op experiences and feedback. Drexel "ask[s] students retuming from co-op what they learned. [Drexel] ask[s] employers know." that hire [their] students what those students need to DrexelUniversity,Co-opOne Hundred, The Classroom/Workplace Connection, How do we know our curriculum matches the needs the https://drexel.edu/co-op100/learn/classroom- of workplace?, workplace-connection/;seealso Exhibit "A". 22. Moreover, a review of the Employer Agreement submitted with Mr. Sladen's Affidavit establishes the deeper connection of Drexel to their "employer partners". See Defendant's Exhibit "E". The Agreement, in pertinent part, states the following: • "The Steinbright Career Development Center at Drexel is responsible (Steinbright) students' experiences..." for monitoring co-op 5 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 • employer partners, students and Drexel -work together to maintain "...[c]o-op open communication throughout the co-op experience, establish clear goals and arise." expectations, and proactively address any issues that • employer partners must provide Steinbright with a written description of "Co-op duties." the co-op student's • "...Steinbright professional staff from time to time request to visit locations may where co-op students are working to meet organization representatives and to ensure that students and co-op employer partners are receiving optimal benefits from the co-op program. 23. The Employer Agreement also confirms that co-op students earn credit while working for the employer partner. Id. 24. Here, Drexel has failed to establish that itdid not exert control over the employment of its students by its"employer partners". In fact, the evidence submitted with Mr. Sladen's Affidavit, together with Drexel's website, establishes that Drexel did exert control over which employers were involved in the coop program, the goals and expectations of the work to be done by its students, monitoring of its student's experiences, the duties to be students.1 performed by its students, and resolution of work place issues had by its 25. Moreover, the agency relationship between Drexel and its students and Drexel's liability stemming therefrom is a question to be resolved by a jury. Maurillo, supra. Again, it should be noted that without any discovery, due to the pre-mature nature of this motion for summary judgment, Plaintiff is severely prejudiced in the defense of the instant motion. 6 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 26. As Drexel has failed to establish that they did not exert control over the employment of "employer-partner" their students by the Jaidan, Drexel has failed to establish that they are not vicariously liable for the acts of their student/employees. "INTERNS" II. _WHETHE_R DREXEL'S STUDENTS ARE CONSIDERED OR "EMPLOYEES" FOR THE PURPOSES OF FAIR WAGE PRACTICES IS NOT DETERMINATIVE AS TO THEIR VICARIOUS LIABILITY FOR THEIR NEGLIGENT ACTS. "interns" "employees" 27. The determination of whether Drexel's students were or as itrelates to the Fair Labor Standards Act and New York Labor Law is not determinative as to whether Drexel, who exhibited control over their work and placement with Jaidan through the cooperative education program, is vicariously liable for their negligent acts. test" 28. While the Glatt v. Fox Searchlight Pictures, Inc. "primary beneficiary can be informative to the instant case, it is not controlling. In Glatt, the Plaintiffs sought compensation as employees under the Fair Labor Standards Act and New York Labor Law. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536 (2d Cir. 2016). Accordingly, the factors outlined in Glatt were in contemplation of whether a worker should receive the minimum wage and other protections afforded under the FLSA and NYLL. Id. 29. It does not follow that just because a worker might be determined to be an employee for purposes of being paid a wage that the worker, as a student, is not under any control or direction from an educational program that they are currently enrolled in. 30. Notwithstanding the above, Drexel improperly alleges that the determination under Glatt begins and ends with the firstfactor regarding compensation. However, the Court in Glatt explicitly stated that "[n]o one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage". Id at 537. The court went on to that the proffered list was non- say 7 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 exhaustive and that "a court may elect in certain cases ...to consider evidence about an intern." internship program as a whole rather than the experience of a specific Id. 31. In considering the remaining factors suggested by the court inGlatt, Drexel's analysis is amiss. The students work with Jaidan specifically provided training to complement the academic program they were enrolled in at Drexel. In fact, this is the distinct and unique nature of a cooperative educational program. The student's work with Jaidan was a necessary component of their formal education, inasmuch as they received credit for their time at Jaidan and same was required to graduate. 32. Moreover, despite Defendant's allegations to the contrary, their six month cycle with Jaidan was directly correlated to the academic calendar, in that "Drexel's academic calendar is based on a quarter system, and a student's co-op cycle determines which co-op" quarters they will go on and "they alternate periods of full-time study with full-time employment at University approved employers". 33. Also, as stated above, , "[c]o-op students are considered full-time students while employed campus." and are subject to the same policies as if attending class on DrexelUniversity, Co-op Information for Employers & Companies, Becoming A Co-Op Employer, https://drexel.edu/difference/co-op/employer/;seealso Exhibit "A". 34. Defendant attempts to mislead this court in asserting that their employment term was "a longer period than a normal Drexel quarter". See Cornell Memorandum of Law at page 8. Additionally, Defendant's assertion that these students expected a job offer at the conclusion of the co-op employment is completely speculative and baseless. Id. Simply students' because other co-op were offered employment does not necessarily create an 8 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 "entitlement" expectation of a job offer. Moreover itcertainly doesn't set forth an to a job offer. See Glatt, supra. 35. Defendant's reliance on the test in Glatt to determine that their students were an employee entitled to fair wages is not determinative as to whether they are vicariously liable for their negligent acts. Further, Defendant has failed to establish that, considering all of the evidence, the students were not "interns". III. DEFENDANT HAS FAILED TO ESTABLISH. PRIMA FACIE, THAT THEY WERE NOT NEGLIGENT IN THE SUPERVISION OR TRAINING OF ITS STUDENTS 36. It is again brought to the Court's attention that without further discovery Plaintiff is prejudiced in defending the instant motion and as such, Drexel's motion should be denied as pre-mature. 37. Defendants have failed to establish that the relationship with the student tortfeasors did not amount to a principal agent relationship, similar to that of an employee-employer relationship. As discussed above, Drexel retained control over the placement, duties and performance of itsstudents when working with their "employer-partners". 38. Further, Drexel failed to establish that they did not know, or should not have known that itsstudents would be operating forklifts as part of their cooperative work with Jaidan. 39. Drexel's reliance on the job listing by Jaidan is unavailing. As evidenced by the "Employment Agreement", "[t]he Steinbright Career Development Center (Steinbright) at students' Drexel is responsible for monitoring co-op experiences...". Further, Drexel retained the right to visit the locations of employer-partners. 40. Moreover, according to Drexel's academic model, students returning from their co-op cycles share their experiences. As it isclear that Jaidan has been an employer-partner for 9 of 10 FILED: NASSAU COUNTY CLERK 10/24/2019 10:52 AM INDEX NO. 601516/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2019 previous cycles, it isfeasible that students have reported back regarding their experience that their duties included the use of forklifts. 41. Accordingly, as Drexel retained a principal-agent relationship with itsstudents while they "employer-partner" were engaged in the cooperative education program with its and they knew or should have known that the student tortfeasors would be operating fork lifts, Drexel has failed to establish, prima facie, that they were not negligent in the supervision or training of the students. WHEREFORE, it is respectfully requested that Defendant's motion be denied in its entirety. Dated: Westbury, New York October 23, 2019 Respectfully Submitted, EDELMAN, KRASIN & JAYE, PLLC Monica P. Becker, Esq. Attorneys for Plaintiff 7001 Brush Hollow Road, Suite 100 Westbury, New York 11590 (516) 742-9200 TO: BIEDERMANN HOENIG SEMPREVIVO A Professional Corporation Attorneys for Defendant DREXEL UNIVERSITY 42nd 60 East Street, Suite 600 New York, NY 10165 646-218-7560 KENNETH B. MOCK, ESQ. . Attorney for Defendant FRONTPAGE INVESTMENTS d/b/a YOUSEF HABIBIAN 100 Main Street, 96A Hempstead, NY 11550 516-489-5397 10 of 10