The following e-filed documents, listed by NYSCEF document number (Motion 004) 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for Judgment-SummaryDECISION AND ORDER Upon the foregoing documents, it is ORDERED that defendant Park West Executive Services, Inc. d/b/a Town Car International’s (hereinafter “Park”) motion for summary judgment in favor of defendant and to dismiss all claims and cross-claims against Park on the grounds that Park did not employ the driver of a vehicle and did not own or maintain the vehicle that was involved in a motor vehicle accident which occurred on December 27, 2014, at the intersection of East 40th Street and Lexington in the County, City, and State of New York when a vehicle operated by Jose O. Cuzco and allegedly owned Cuzco, Antonio’s Car Service, and Antonio’s Car & Luxury Transportation Corp. collided with a vehicle operated by defendant Adel M. Mina that was transporting plaintiff Vanessa Feimer and led to her serious injury is granted. The decision and order are as follows:”The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]” (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).“An employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor” (Matter of O’Brien v. Spitzer, 7 NY3d 239, 242 [2006] citing Matter of Hertz Corp., 2 NY3d 733, 735 [2004]; Matter of Charles A. Field Delivery Serv., 66 NY2d 516, 521 [1985]). The Court of Appeals has found that “incidental 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 NY2d 725, 726 [1974]). In Bynog v. Cipriani Group, Inc., 1 NY3d 193, 198 [2003] the Court of Appeals listed five “factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule.”The Appellate Division First Department has found that taxi drivers are independent contractors and not considered employees where the “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 [the dispatcher]” (Chaouni v. Ali, 105 AD3d 424, 425 [1st Dept 2013] [finding that the independent contractor relationship was demonstrated by the lack of a uniform requirement or dress code, driver discretion of when to work, the ability to work from other livery base stations, receipt of a percentage of all fares and 100 percent of all tips by drivers, not withholding taxes and the issuance of 1099 forms not W-2 forms]).Here, Park argues that the driver, defendant Mina was not an employee of Park but instead an “Independent Owner Operator” (hereinafter “IOO). Defendants provide the affidavit of Seth Berman, the Executive Vice President and General Counsel of Park who affirms that Park “does not own any of the vehicles used to transport the customers, nor does it lease any such vehicles. Instead, the IOOs own their vehicles. The IOOS are responsible for the maintenance of those vehicles, and all expenses associated with their vehicles, such as gasoline, EZ pass, insurance and workers compensation coverage…the IOOs, furthermore are free to accept or decline any booking….free to work as many or as few days and hours as they choose” (Mot, Exh K,
