9692-9692A. DRISS CHAOUNI, plf-res, v. SHAJAHAN ALI, def, DIAL 7 CAR AND LIMOUSINE SERVICE, INC., def-ap — The Shanker Law Firm, P.C., New York (Steven J. Shanker of counsel), for ap — Wingate, Russotti Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for res — Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 1, 2012, which, insofar as appealed from, denied defendant Dial 7 Car and Limousine Service, Inc.’s (Dial 7) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court and Justice, entered on or about May 15, 2012, which denied Dial 7′s motion for leave to reargue, unanimously dismissed, without costs, as taken from a nonappealable order. The Clerk is directed to enter judgment accordingly.
Supreme Court should have granted Dial 7′s motion to dismiss because it established that it could not be held liable for defendant Shajahan Ali’s conduct, as he was an independent contractor and not Dial 7′s employee. Dial 7 submitted a host of evidence showing that it did not control the method or means by which Ali’s work was to be performed (see Matter of O’Brien v. Spitzer, 7 NY3d 239, 242 [2006]; Anikushina v. Moodie, 58 AD3d 501, 504 [1st Dept 2009], lv dismissed 12 NY3d 905 [2009]). The undisputed evidence showed that Dial 7′s drivers own their own vehicles, were responsible for the maintenance thereof, paid for the insurance, and had unfettered discretion to determine the days and times they worked, with no minimum or maximum number of hours or days imposed by Dial 7. Dial 7 does not require its drivers to wear a uniform nor does it have a dress code, and its drivers are free to accept or reject any dispatch as they like, can take breaks or end their shifts whenever they want, and are even permitted to work for other livery base stations. Dial 7′s drivers kept a fixed percentage of all fares and 100 percent of all tips, and Dial 7 did not withhold taxes and issued 1099 forms, not W-2 forms, to its drivers (see Barak v. Chen, 87 AD3d 955 [2d Dept 2011]; Abouzeid v. Grgas, 295 AD2d 376, 377-378 [2d Dept 2002]).
