Motion-Secondary: Jay Jacobson v. The Squeeze Inc, Squeeze My Jk, Inc

On February 09, 2015 a Motion-Secondary was filed involving a dispute between Jay Jacobson, and Squeeze My Jk, Inc, The Squeeze Inc, for Tort in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 11/02/2017 10:20 PM INDEX NO. 151365/2015
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 11/02/2017

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JAY JACOBSON,

Plaintiff, Index No. 151365/2015
-against-

THE SQUEEZE INC. and SQUEEZE MY JK, INC.,

Defendants.
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT
OF DEFENDANT’S SUMMARY JUDGMENT MOTION

TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, New York 10532
(914) 347-2600

Attorneys for Defendant
The Squeeze Inc.

Of Counsel:
Colleen E. Hastie

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PRELIMINARY STATEMENT

This reply memorandum of Law is submitted by defendant The Squeeze Inc., (Squeeze)

in further support of its motion pursuant to N.Y. C.P.L.R. 3212, seeking summary judgment

dismissing plaintiff’s complaint.

As demonstrated below, the undisputed proof establishes that on the date of the alleged

incident, Aliyah Akhtab was providing services to Squeeze as an independent contractor, not an

employee. Absent an employer/employee relationship, Squeeze can not be held vicariously

responsible for the alleged negligence of Ms. Akhtab.

Plaintiff’s opposition to defendant’s motion is based on inadmissible hearsay, incorrectly

cited testimony and an inadmissible expert affidavit. Plaintiff fails to produce any admissible

evidence establishing a triable issue of fact, as such Squeeze’s motion for summary judgment

motion must be granted in its entirety.

STATEMENT OF FACT

The facts upon which this motion is predicated are set forth with particularity in the

Affirmation of Colleen E. Hastie ("Hastie Aff.") dated August 2, 2017, and filed with

defendant’s initial moving papers.. These facts are discussed herein only as necessary to

elucidate Squeeze’s arguments in support of the instant motion.

ARGUMENT

SUMMARY JUDGMENT IS WARRANTED
BECAUSE PLAINTIFF==S OPPOSITION FAILS
TO RAISE A MATERIAL ISSUE OF FACT

The proponent of a motion for summary judgment must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate that

there are no triable issues of fact or that the cause of action lacks legal merit. Winegrad v. New

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York University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985).

Once this showing has been made, the party opposing summary judgment bears the burden to

come forward with matters of an evidentiary nature demonstrating the presence of a material

triable issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427

N.Y.S.2d 595 (1980). A shadowy semblance of an issue or bald conclusory assertions, even if

believable, are not enough to defeat a motion for summary judgment. Mayer v. McBrunigan

Const. Corp., 105 A.D.2d 774, 481 N.Y.S.2d 719 (2d Dept. 1984), appeal denied, 65 N.Y.2d

606, 493 N.Y.S.2d 1029, 482 N.E.2d 1231; Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S.2d

128 (1st Dep=t), aff=d 64 N.Y.2d 1077, 489 N.Y.S.2d 880 (1985).

For the reasons set forth herein, plaintiff has failed to come forward with any evidence

demonstrating the existence of a material triable issue of fact. Summary judgment dismissing

plaintiff’s complaint is warranted on the various independently dispositive grounds set forth

below.

II.

PLAINTIFF’S EXPERT
AFFIDAVIT SHOULD BE PRECLUDED

Plaintiff would have you believe this case involves allegations of New York State Labor

Law violations, going as far as presenting a purported New York State Labor Law expert to

opine ON whether Aliyah Akhbar was working as an independent contractor. Plaintiff’s previous

efforts to amend the complaint to allege causes of action for Labor Law violations related to

payment of wages or classification of work was denied, with the court stating that Labor Law

statutes do not impose a duty on defendant to the plaintiff. See Justice Debra James decision

dated September 29, 2016, at New York State e-file docket number 52 1.

1
Plaintiff cited to this decision in the opposition papers but failed to include the decision as an exhibit.
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Plaintiff, unwilling to forgo reliance on alleged Labor Law violations and having

insufficient facts to support allegations of negligence against defendant, resorts to relying on

inadmissible and irrelevant expert testimony of Richard J. Polsinello (“Polsinello”), a purported

expert in Labor Standards and administration and enforcement of New York State Labor Law.

Plaintiff’s expert should be precluded and the affidavit disregarded as Polsinello (i) lacks the

necessary background to be deemed an expert “vocational analysist”, or to provide an opinion on

Alyah Akhtab’s (“Akhtab”) employment status in the context of a civil personal injury action;

(ii) provides no foundation to support his speculative and conclusive findings; (iii) provides an

opinion on a topic that is within the understanding of the common person; and (iv) improperly

reaches a conclusion on a purely legal issue that is to determined by the court.

Admissibility of expert testimony is a mixed question of law and fact addressed by the

discretion of the trial court. Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10

(1978) citing Dougherty v. Milliken, 163 N.Y. 527, 533. To be deemed an “expert,” the witness

needs to demonstrate they possesses the requisite skill, training, education, knowledge or

experience from which it can be assured that the opinion is reliable. Matott v. Ward, 48 N.Y.2d

455, 423 N.Y.S.2d 645 (1979). Expert testimony may not be offered on an issue that is within

the range of ordinary training or intelligence (Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408

N.Y.S.2d 10 (1978)) and may not provide legal conclusions, which are exclusively reserved for

the trier of fact. See Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 A.D.2d

63 (1st Dep’t 2002) (expert affidavit precluded where the affiant-attorney offered a legal opinion

as to what performance or absence thereof constitutes legal malpractice as such determination is

the function of a court); Colon v. Rent-A-Center, Inc., 276 A.D.2d 58 (1st Dep’t 2000) (expert

economist affidavit deemed impermissible when expert offered opinion on the legal obligations

of parties under a contract); and Measom v. Greenwich & Perry St. Hous. Corp., 268 A.D.2d 156
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(1st Dep’t 2000) (purported expert precluded from offering an opinion on the legality of an

apartment and effect of legality on the enforceability of the lease).

In the present case, plaintiff proffers Polsinello as an expert vocational analyist to provide

an opinion on whether plaintiff is an independent contractor or employee. At the outset,

Polsinello sets forth no qualifications that would render Polsinello an expert in determination of

this specific issue. Polsinello seemingly has no educational credits, degrees or achievements of

any kind. Polsinello recitation of relevant background information demonstrate that his

experience is limited to providing investigation, administration and enforcement of New York

State Labor Law standards in wage and hour laws, policy and practices, child labor and migrant

farm labor. Polsinello’s qualifications are devoid of any expertise and/or experience in

determining a worker’s status as an independent contractor versus an employee in the context of

personal injury negligence lawsuits. Thus as a threshold matter, Polsinello fails to qualify in the

field in which he is being proffered and should be precluded as a matter of law.

The Polsinello affidavit is also fatally flawed in its failure to provide any foundational

citations. Polsinello sets forth a list of “major” and “strong” factors that indicate that a worker is

either an independent contractor or employee. Polsinello provides absolutely no citation setting

forth the source for these factors. Nor does Polsinello make any statement that such factors are

commonly employed by those engaged in the food delivery service business. To the extent such

factors are derived from Labor Law statutes, which is unclear given the lack of citations, they

should be disregarded as having no relevance in this context—i.e, personal injury negligence

action.

A third, independently dispositive grounds for preclusion of the Polsinello affidavit, is

that itdoes not provide insight or explanation on a topic that is outside of a persons ordinary

training and/or intelligence. Polsinello is not offering an opinion on complicated economics,
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accounting, medical procedure or engineering. Polsinello is providing an opinion on a topic the

vast majority of Americans are intimately familiar, i.e.,working. As such, this topic is not one

that requires an expert to explain.

Finally, Polsinello is offering a legal conclusion that Ms. Aktab was an employee of

defendant as opposed to an independent contractor. Legal conclusions are within the purview of

the court, and there is an entire body of caselaw (discussed herein) that sets forth the criteria for

determining whether a worker is an employee or independent contractor.

Based on the above, Polsinello’s expert affidavit should be deemed inadmissible and not

considered by the court in deciding defendant’s motion for summary judgment.

III.

ALIYAH AKHTAB WAS AN
INDEPENDENT CONTRACTOR AT
THE TIME OF THE ALLEGED INCIDENT

As a general rule, a principal is not liable for the acts of an independent contract because

the principal does not control the manner in which the independent contractor performs their

work Chianani v. Board of Educ. Of City of N.Y. 87 N.Y.2d 370, 380-381, 639 N.Y.S.2d 971,

975. While such a determination typically involves a question of fact, in those instances where

the evidence on the issue of control presents no conflict in evidencet, the matter may properly be

gffN.Y.S.2d 272, 273-274 (1st Dep’t 1993), aff'd, 84 N.Y.2d 896, 620 N.Y.S.2d 794 (1994);

Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, 988, 588 N.Y.S.2d 449 (4th Dep’t 1992).

The Court of Appeals has reaffirmed that a critical inquiry in determining whether an

employment relationship exists “pertains to the degree of control exercised by the purported

employer." Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 694-695, 1092-

1093 (20030. The factors relevant to assessing control include whether the worker (1) works at

his own convenience, (2) is free to engage in other employment, (3) receives fringe benefits, (4)
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is on the employer's payroll and (5) is on a fixed schedule. Bynog, 1 N.Y.3d at 198, 770

N.Y.S.2d at 695. Moreover, "incidental 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." Matter of Ted Is Back Corp., 64 N.Y.2d 725, 726, 485

N.Y.S.2d 742, 743, 475 N.E.2d 113, 114 (1984).

Plaintiff does not produce any evidence that the Squeeze exercised any control over the

manner Akhtab performed her food delivery services. Akhtab was not given any instructions on

routes she was required to take, the order in which deliveries were to be made, or the manner in

which her bicycle was to be operated. Hastie Aff. Ex. I at 45-47. Nor does plaintiff dispute that

Akhtab was permitted to hold other employment, did not work full time, did not have taxes

withheld from her payment, did not receive fringe benefits (Ex. G at 92; Ex. I at 160, 164-165)

and was responsible for providing all necessary equipment for the performance of her work,

including a bicycle, messenger bag, helmet and bicycling clothing, and was not provided an

uniform Ex. G at 75-76, 80, 132; Ex. I at 19, 23, 29 127-128.

In opposing defendant’s motion, plaintiff focuses on two factors to the exclusion of all

other factors cited above (i) Akhtab allegedly worked a set schedule; and (ii)Akhtab allegedly

managed the bicycle delivery persons schedule.

Plaintiff, relying on hearsay statement of Squeeze employee “KC”, asserts plaintiff

worked a set shift. Not only does this statement rely on inadmissible hearsay, the testimony is

misquoted and contradicted by Akhtab’s and Squeeze’s testimony and documentary evidence.

Ms. Akhtab’s full answer, absent impermissible hearsay, to the question posed regarding the

hours is as follows:

A. … It wasn’t really a set schedule. That was what was really complicated
about them. So it is just a mater of – they are open from 8:00 a.m. to 9:30
a.m., so if I can do two shifts a day I’ll do it. If I did one, that would be
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for the beginning of the day and the other one will be fore like towards
the end of the day.

A. I[f[ it wasn’t a set shift, how did you know what time to show up on any
given day?

A. They will text me, call me. …

Hastie Aff. Ex. I at 17-18.

* * *

Q. Were there ever times where you were able to text or call Karlin and say I
want to work today, can I come in to work?

A. Yeah. It was like that. I would just like text, hey you need me, can I come
in, you know.
Ex. I at 33-34.

Akhtab further testified that she did not work a set schedule. Instead, she worked only

when she received a text message request from Squeeze (Hastie Aff. Ex. I at 17-18, 27; Ex. G at

67-68, 72-73), or advised Squeeze she was available for deliveries. Hastie Aff. Ex. I at 33-34.

Squeeze owner, Karlin Brooks, confirmed Akhtab did not work on a set schedule. Hastie Aff.

Ex. G at 67-68. Akhtab’s testimony is further confirmed by a review of her time sheets, which

demonstrates Akhtab services were provided erratically of the course of five (5) weeks. Hastie

Aff. Ex. M. Plaintiff makes the bold assertion that the time sheets should not be considered

because Akhtab testified that the timesheet did not accurately reflect her work hours. Plaintiff

fails to disclose that the “timesheet” Akhtab was shown at her deposition was a printout Akhtab

made from the time system portal. Hastie Aff. Ex. I at 42. This document, which plaintiff did not

attach to the opposition papers, is not the same as the official timesheet maintained by Squeeze

and marked at Squeeze’s deposition and included as Ex. M in Squeeze’s motion.

In addition to providing food delivery services to Squeeze, Akhtab provided one week of

bicycle delivery person scheduling services. For this service, Akhtab was paid a flat fee, between
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$75 and $150. This payment was that was separate and apart from the payment she received for

performing food delivery. Hastie Aff. Ex. G at 155; Ex. I at 35-36, 72-76, 79.

Plaintiff’s reliance on phone records allegedly between Akhtab and Squeeze president,

Karlin Brooks, is misplaced and nothing more than a red herring. At the outset, the uncertified

records are inadmissible hearsay and should not be considered. N.Y. C.P.L.R. 3122-a requires

all business records produced pursuant to a subpoena duces tecum to be accompanied by a sworn

certification stating that authenticity and completeness of the records produced. Absent a sworn

certification, the records are hearsay and do not qualify for the business records exception to the

hearsay rule. Zweng v. DeBellis & Semmens 22 A.D.3d 845, 803 N.Y.S.2d 681 (2d Dep’t 2005);

see also People v. D’Agostino 120 Misc. 2d 437, 465 N.Y.S.2d 834 (Sup. Ct. 1983).

Further the phone records are evidence of nothing other than missed phone calls and

potential voicemail message. The existence of a phone call is meaningless without knowledge of

whether the phone call resulted in a conversation and knowledge of the content of the

conversation.

In the present case, Ms. Akhtab used her own bicycle, helmet, biking apparel and

messenger bag to perform deliveries, she was free to hold other employment, she was not on the

Insured’s payroll, did not receive any fringe benefits; and was never given any direction on how

to perform the deliveries (i.e., order of deliveries, route to follow to complete deliveries). All of

these factors establish Ms. Akhtab was an independent contractor at the time of the alleged

incident. As such, summary judgment dismissing plaintiff’s complaint must be granted.

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III.

PLAINTIFF HAS FAILED TO ASSERT A
NEGLIGENT HIRING CAUSE OF ACTION

Plaintiff nominally alleges two (2) causes of actions against the Squeeze. The first cause

of action pleads allegations of negligence against Squeeze based on Squeeze vicarious liability

for the actions of bicycle delivery person, Aliyah Akhtab. Plaintiff’s “second cause of action”

fails to set forth an actionable cause of action as it merely sets for a recitation of plaintiff’s

alleged injuries/damages. It is defendant’s position that plaintiff’s complaint does not plead a

cause of action for negligent hiring/retention, a fact that is not disputed by plaintiff.

A cause of action for negligent hiring must set forth allegations that the employer knew

or should have known of the employee’s propensity to (i) engage in the conduct that caused the

alleged injury; or (ii) the employer failed to investigate a prospective employee notwithstanding

knowledge of facts that would lead a reasonably prudent person to investigate that perspective

employee. Koran I. v. New York City of Bd. Of Educ. 256 A.D.2d 189, 230 (1st Dep’t 1998);

Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dep’t 2004).

Plaintiff does not dispute that the Amended Complaint does not state a cause of action for

negligent hiring/retention. Instead, plaintiff references Justice James decision allowing plaintiff

to “amplify the first cause of action by adding factual allegations relating to the hiring,

supervision and/or control of the bicycle delivery person [Emphasis Added].” See Ex. DN 52.

The first cause of action in plaintiff’s Amended Complaint undeniably states a cause of action

for respondeat superior, and Justice James order merely allowed plaintiff to include factual

allegations in support of that cause of action.

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Exactly one paragraph of plaintiff’s Amended Complaint contains the word “hire”, and it

makes no allegations that defendant negligently hired or retained Akhtab. Instead the paragraph

simply reads:

All times hereinafter mentioned the defendants, its employees, agents and/or
personnel, was responsible to hire the bikers/messengers, in this instance,
“AKHTAB”, to carry out their job duties as delivery personnel on behalf of the
defendant, and failed to do so in a proper and satisfactory manner.

Hastie Aff. Ex. D at ¶37.

The remainder of the allegations in plaintiff’s first cause of action is devoid of any

assertion that Akhtab had a propensity of striking pedestrians while engaging in deliveries, or

even a propensity for involvement in collisions of any nature, or that the Squeeze failed to

conduct a proper background check.

Even if it is determined plaintiff sets forth significant allegations to make out a cause of

action for negligent hiring, plaintiff has failed to produce any admissible proof that Akhtab had a

propensity to strike pedestrians during the course of performing bicycle delivery services, or that

Squeeze had notice of this propensity. In fact, the evidence is to the contrary. Ms. Akhtab

testified that the accident involving plaintiff was her “very first accident” in the three years she

worked as a professional bicycle delivery person. Hastie Aff. Ex. I at 110. Therefore, there is no

basis for a negligent hiring/retention cause of action, and it must be dismissed.

CONCLUSION

Defendant has established its entitlement to preclusion of plaintiff’s expert affidavit, and

summary judgment dismissing plaintiff’s complaint in its entirety on the grounds that Akhtab is

an independent contractor, and thus Squeeze can not be held vicariously liable for her actions.

WHEREFORE, it is respectfully requested that this Court grant defendant Squeeze’s

motion for summary judgment dismissal of all plaintiff’s claims against it on the basis that

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Squeeze is not vicariously liable for the actions of biker Aliyah Akhtab, and was not directly

negligent, together with such other and further relief as this Court may deem just and proper.

Dated: Hawthorne, New York
November 2, 2017

TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP

By: _________________________________________
Colleen E. Hastie

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Motion-Secondary: Jay Jacobson v. The Squeeze Inc, Squeeze My Jk, Inc

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