| Adler v 20/20 Cos. |
| 2011 NY Slip Op 01962 [82 AD3d 915] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Marla Adler et al., Appellants, v 20/20 Companies et al.,Defendants, and Verizon Communications, Inc., et al., Respondents. |
—[*1] Greenberg Traurig, LLP, New York, N.Y. (Alan Mansfield, William A. Wargo, and CandaceCamarata of counsel), for respondents.
In an action, inter alia, to recover damages for violation of Labor Law § 215 andtortious interference with prospective economic or contractual relations, the plaintiffs appealfrom an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 5, 2010, whichgranted the motion of the defendants Verizon Communications, Inc., and Verizon Services Corp.pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint insofar as assertedagainst those defendants.
Ordered that the order is affirmed, with costs.
In their amended complaint, the plaintiffs alleged that they were jointly employed by thedefendant 20/20 Communications, Inc. (hereinafter 20/20), and the defendants VerizonCommunications, Inc., and Verizon Services Corp. (hereinafter together Verizon) to sell VerizonFiOS services on a commission basis. They commenced this action, inter alia, to recoverdamages pursuant to Labor Law § 215, which prohibits discrimination against an employeewho complains to his to her employer regarding Labor Law violations, and who contends that heor she was fired in retaliation for complaining that he or she was not being paid commissions towhich he or she was entitled. The amended complaint further alleged that Verizon was liable fortortious interference with prospective economic or contractual relations because it "black-listed"the plaintiffs, thereby preventing their employment by the defendant TRG Customer Solutions(hereinafter TRG), which also hired salespeople to sell FiOS services pursuant to an agreementwith Verizon.
Verizon moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaintinsofar as asserted against it, contending that the plaintiffs were employed by 20/20, whichprovided sales and marketing services as an independent contractor to Verizon pursuant to anoutsourcing agreement. Verizon contended that since it did not employ the plaintiffs, they had nocause of action against Verizon pursuant to Labor Law § 215. In support of the motion,Verizon submitted copies of its marketing agreement with 20/20 which recited, among otherthings, that "in providing any Services under this Agreement, [20/20] is acting solely as anindependent contractor [*2]and not as an agent of any other party.Persons furnished by [20/20] shall be solely the employees or agents of [20/20] and shall beunder the sole and exclusive direction and control of such party. They shall not be consideredemployees of Verizon for any purpose."
The Supreme Court agreed with Verizon that the documentary evidence demonstrated thatthe plaintiffs were employed solely by 20/20 and dismissed the Labor Law § 215 causes ofaction insofar as asserted against Verizon. The Supreme Court further dismissed the cause ofaction to recover damages for tortious interference with prospective economic or contractualrelations, finding that the plaintiffs had failed to plead that Verizon used wrongful means toprevent their employment by TRG. We affirm.
"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidencesubmitted conclusively establishes a defense to the asserted claims as a matter of law" (Leonv Martinez, 84 NY2d 83, 88 [1994]; see Country Pointe at Dix Hills Home Owners Assn., Inc. v BeechwoodOrg., 80 AD3d 643 [2011]). In support of that branch of its motion which was todismiss the causes of action alleging violation of Labor Law § 215, Verizon submittedvarious documents, including the agreement between Verizon and 20/20, which classified theplaintiffs solely as the employees of 20/20. That agreement further provided, in relevant part,that: "[20/20] will have the sole responsibility and authority for any and all selection, hiring,management, coaching, evaluation, discipline, promotion and employment termination of itsemployees, and Verizon agrees that it will not perform or attempt to perform any of the foregoingactivities with respect to [20/20] employees. [20/20] has the sole right to provide directmanagement and supervision to its employees on-site at any time during Verizon's hours ofoperation. Verizon agrees to take no action or engage in any behavior that would reasonably beconstrued as the exercise or indicia of the employer rights or responsibilities or otherwisesubstantiate a 'joint employer' or 'co-employer' status for Verizon with respect to [20/20's]employees or otherwise subject itself or [20/20] to any employment-related claims."
In response to the foregoing evidence, the plaintiffs merely submitted three almostidentically-worded affidavits which alleged, in conclusory fashion, that Verizon personnel wereinvolved generally in the supervision, training, discipline, and termination of employees.However, these allegations, consisting of bare legal conclusions and claims that are flatlycontradicted by Verizon's documentary evidence, were insufficient to warrant the denial ofVerizon's motion (see KSW Mech.Servs., Inc. v Willis of N.Y., Inc., 63 AD3d 411, 412 [2009]; Ace Fire Underwriter's Ins. Co. v ITTIndus., Inc., 55 AD3d 346 [2008]; Biondi v Beekman Hill House Apt. Corp.,257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]). At most, the authority allegedlyexercised by Verizon was consistent with a typical subcontracting arrangement, and did notrender Verizon a joint employer of the plaintiffs. Accordingly, Verizon conclusively establishedwith documentary evidence that it was not a coemployer of the plaintiffs, and that branch of itsmotion which was pursuant to CPLR 3211 (a) (1) to dismiss the causes of action for violation ofLabor Law § 215 insofar as asserted against it was properly granted.
The Supreme Court's dismissal of the cause of action alleging tortious interference withprospective economic or contractual relations insofar as asserted against Verizon was likewiseproper. To state a cause of action to recover damages for tortious interference with prospectivecontractual relations, the plaintiff must allege that the defendant engaged in culpable conductwhich interfered with a prospective contractual relationship between the plaintiff and a thirdparty (see Smith v Meridian Tech.,Inc., 52 AD3d 685 [2008]). "As a general rule, such culpable conduct must amount to acrime or an independent tort, and may include '[w]rongful means,' defined as 'physical violence,fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economicpressure . . . . [M]ere knowing persuasion would not be sufficient' (Guard-LifeCorp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191, 196 [1980]; see Carvel Corp. v Noonan, 3 NY3d182, [*3]190-193 [2004]; Smith v Meridian Tech.,Inc., 52 AD3d at 687)" (Lyons vMenoudakos & Menoudakos, P.C., 63 AD3d 801, 802 [2009]).
Accepting as true the factual allegations of the amended complaint regarding tortiousinterference with prospective contractual relations, as we must on this motion pursuant to CPLR3211 (see Leon v Martinez, 84 NY2d at 87-88), we conclude that the plaintiffs havefailed to adequately plead sufficiently wrongful conduct on the part of Verizon to support theircause of action.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Chambers, Lott andCohen, JJ., concur. [Prior Case History: 2010 NY Slip Op 30042(U).]