The following e-filed documents, listed by NYSCEF document number (Motion 004) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 101, 102 were read on this motion to/for JUDGMENT — SUMMARY Defendant’s motion for summary judgment is denied and plaintiff’s cross-motion to amend the Complaint is also denied. Plaintiff Shahar Kenan (“plaintiff”) filed this action against defendants Matthew Blit (“Blit”), Les Levine (“Levine”), and Levine and Blit, PLLC (“L & B” or “defendant”), alleging unpaid wages, unpaid overtime wages, unpaid vacation days, unpaid bonuses and unpaid medical insurance for work performed between August 2007 and October 2008. Defendants Blit and Levine have since been dismissed from this action. Plaintiff immigrated to the United States in 2006 and began attending New York Paralegal School (“NYPS”) soon after, graduating before beginning work at L & B. Plaintiff previously received a law degree from Israel, but to date has not taken the Bar Exam. Defendant is a law firm that specializes in, among other areas, no-fault litigation. Plaintiff stated that in the middle of August 2007, he first responded to an advertisement on Craigslist for an internship at L & B. Defendant stated that plaintiff was hired as part of the firm’s internship program with NYPS. NYPS and defendant had an agreement where NYPS students would intern as paralegals and perform about 300 hours of “site” work. Interns would receive experience in areas such as legal research, filing, and drafting, while assisting L & B attorneys. It is not disputed that the only agreement presented to the Court is a contract between L & B and NYPS for the terms of the internship program and that plaintiff’s signature is not present on any agreement with defendant. Plaintiff’s internship commenced towards the end of August 2007. Both parties agree that the expectation was that the internship would be unpaid, nor would plaintiff receive educational credit. Internships at L & B typically lasted three to four months. Plaintiff alleges that Blit informed him that a salaried position may be offered to him after the internship concluded. It is not disputed that plaintiff had no experience or knowledge of no-fault litigation practice. As part of the internship, plaintiff was provided a packet containing educational materials on no-fault litigation practice. Plaintiff initially understood that the internship was to be for educational purposes. Plaintiff learned no-fault practice through his time at L & B, assistance from other L & B employees, self-teaching, and access to the New York Law Journal, made available by L & B. Plaintiff maintained that, during the internship, he and other interns were often tasked with going to court to settle cases and making Court appearances, among other work. In October 2007, L & B hired plaintiff for the position of file clerk. Plaintiff was paid a salary of $8 per hour, and $12 per hour of overtime. It is undisputed that from October to December, plaintiff was paid hourly wages and overtime as agreed. In December 2007, plaintiff informed L & B that his Employment Authorization Card would expire on January 1, 2008. From January to October 2008, the parties agree that plaintiff was allowed to retain space inside L & B’s office to continue to work, although the parties dispute what the work was, and on whose behalf the work was performed. Plaintiff contends that parties agreed that plaintiff would continue to work full time as a file clerk for $8 per hour. Plaintiff would not be paid but would receive accrued earnings once his Employment Authorization Card was renewed. Plaintiff also claims that at some point in July 2008, he was made a paralegal and given a raise to $18 per hour. Plaintiff contends that L & B’s time clock did not register his print, so he would instead deliver his handwritten hours to L & B’s bookkeeper every two weeks. Defendant claims that plaintiff was only given space in the office as a courtesy to a former employee in need and he was not an employee of L & B after December 2007. Plaintiff continued to attend L & B functions, attending a company retreat in June 2008. Sometime in 2008, plaintiff began posting advertisements on Craigslist and an Israeli newspaper, offering legal services in fields such as real estate law and no-fault. The parties dispute whether these advertisements were meant to bring in business for L & B or were an attempt by plaintiff to build his own no-fault business. It is undisputed that, in September 2008, plaintiff formed No Fault New York, LLC (“NFNY”), and listed himself as president. Plaintiff claims that defendant advised him to open NFNY so he could be paid his accrued earnings through NFNY. Defendant claims that plaintiff was actually operating NFNY in January 2008, and that all advertisements were related to his own professional services, independent from L & B. Plaintiff alleges that L & B suggested that plaintiff use NFNY to begin pursuing his own client business. Defendant disputes this and claims that plaintiff attempted to poach clients and prospective L & B employees for NFNY. On October 23, 2008, Levine terminated L & B’s relationship with plaintiff while he was out of the office and barred him from reentering the premises. It is undisputed that L & B remained in possession of plaintiff’s personal items in the office. Summary judgment is a drastic remedy that should not be granted where there exists a triable issue of fact (Integrated Logistics Consultants v. Fidata Corp., 131 AD2d 338 [1st Dept 1987]; Ratner v. Elovitz, 198 AD2d 184 [1st Dept 1993]). The moving party must establish a prima facie case showing that it is entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). This burden is a heavy one, and all facts must be viewed in a light most favorable to the non-moving party (Jennack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470 [2013]). The proponent of a summary judgment motion makes a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). After the moving party has demonstrated its prima facie entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial (Jacobsen v. New York City Health and Hospitals Corp., 22 NY3d 824 [2014]; Alvarez, 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Here plaintiff claims relate to three distinct time periods. The claims are for different forms of alleged lack of payments of wages or benefits. Internship Period — August to October 2007 Plaintiff’s civil action first seeks unpaid minimum wages, unpaid overtime wages, unpaid bonuses, unpaid vacation pay, and unpaid medical insurance allegedly earned during the period of August to October 2007, when plaintiff interned at L & B. Plaintiff claims that although he was an intern, under applicable laws, he was entitled to be paid. Defendant argues that the internship qualified for unpaid status and plaintiff was not an employee. In 2007, when the claims relating to the internship period accrued, to determine whether an internship was required to be paid or not, the United State Department of Labor provided criteria in determining whether an internship required payment.1 The six criteria, in place in 2007, include: 1) the type of training, and examines whether the training is similar to one provided in an educational program; 2) whether the training is for the benefit of the intern; 3) whether the intern displaces duties of regular employees, and works under close supervision; 4) whether the activities of the intern provides an immediate advantage to the employer; 5) whether the intern is entitled to a job at the conclusion of the training period and or is free to take jobs elsewhere in the same field; 6) whether the intern and employer understand that the intern is not entitled to wages for the time spent in the internship (see Walling v. Portland Terminal Co. 330 US 148 (1947), see also https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0189.pdf). Reviewing these factors, defendant has not met its burden of eliminating all issues of material fact. First, there is no definitive indication that plaintiff received training similar to that of an educational program as defined by the DOL. Further, there is significant dispute as to the scope and duties of plaintiff during the internship, leaving open the question of whether plaintiff’s tasks were educationally directed or routine work. Plaintiff claims he was directed to settle matters, work that may be considered beyond educational and even if plaintiff was only delivering settlement documents to Court, there remains the possibility that his actions served to displace salaried employees. There is no indication of any oversight of the program, or plaintiff individually. Defendant has merely established that plaintiff had access to firm resources and supervision, as well as the ability to ask other employees questions. Defendant has also not foreclosed the question of whether plaintiff may have been entitled to either an extended internship or job at the conclusion of plaintiff’s internship. Even the manner in which plaintiff received the internship and what terms it was under remains disputed, as there is no signed or dated copy of the alleged agreement in the record. Defendant’s argument that Glatt v. Fox Searchlight Pictures, Inc, necessitates summary judgment is without merit (811 F3d 528 [2d Cir 2015]). Even if this Court was persuaded by the Federal case law, defendant would still not have met its burden for summary judgment. The disputed facts are material in determining whom the primary beneficiary of the internship was. Plaintiff received neither wages nor education credit, and the record remains indeterminate as to the extent of the learning and training provided to plaintiff. Accordingly, defendant’s motion for summary judgment with respect to the Internship Period is denied. However, any claims for unpaid vacation, medical insurance, and bonus compensation for the internship period are dismissed. First, during this time period, plaintiff was an intern and admitted that he had no expectation of any such payments. Further, even taking everything that plaintiff stated at his deposition as true with respect to these extras, plaintiff has admitted that, at best, vacation time was earned per month worked and that he did take some days off; that medical benefits were not accrued until he worked for three months and that bonuses were part of the file clerk and paralegal positions. Period as a File Clerk — October 2007 — December 2007 During plaintiff’s time as a file clerk, he acknowledges that he was properly paid his hourly wages. However, plaintiff seeks his unpaid vacation, medical insurance, and bonus compensation for that time period that he claims was promised to him. Thus, initially, it is defendant’s prima facie burden to establish that defendant is not entitled to these items. Defendant has failed to meet its prima facie burden necessary to support a motion for summary judgment. Defendant has not submitted any evidence that plaintiff, while employed as file clerk, was not entitled to these benefits. Although there was discussion about an employee handbook, no handbook was produced. Since defendant’s showing was insufficient to demonstrate its entitlement to judgment, the burden never shifted to plaintiff to raise a triable issue of fact (see Alvarez, 68 NY2d at 324). Accordingly, its motion for summary judgment with respect to this time period is denied (see Winegrad, 64 NY2d at 853). Similarly, as to defendant’s argument that plaintiff’s allegations are speculative and without merit, the sufficiency of the opposing papers is irrelevant until the moving party’s burden is met (Greenberg v. Manlon Realty, Inc, 43 AD2d 968, 969 [2d Dept 1974]). Although, defendant’s counsel stated at oral arguments that plaintiff was not entitled to these benefits, no affidavits or other evidence was submitted to support this contention. However, plaintiff has acknowledged that his understanding was that someone had to be employed by L & B for at least three months prior to being eligible for medical insurance. Following his internship, both sides agree that he commenced full time employment status as a file clerk for three months until the end of 2007. Thus, by his own calculations he was not entitled to medical benefits before this time period ended. Period After Expiration of Employment Authorization Card Plaintiff’s action seeks unpaid minimum wages, unpaid overtime wages, unpaid bonuses, unpaid vacation pay and unpaid medical insurance during the period of January 2008 to October 2008.2 Again, defendant has failed to establish its prima facie burden for this time period. Defendant’s memo of law states that plaintiff was not an employee of L & B (as was argued at oral argument), but no affidavit or other supporting evidence was produced. Additionally, while there is some evidence that plaintiff was engaging in other work, this does not foreclose the possibility that plaintiff was also engaged in work for L & B. Finally, at his deposition plaintiff very clearly disputes defendant’s claims and stated that he was an employee for L & B and was only not getting paid due his legal status. In fact, he claimed that he was given a raise and new position during this time period. As defendant has not met its prima facie burden and in any event, material facts are in dispute, summary judgment is denied for this time period. Defendant’s procedural argument that plaintiff submitted his opposition papers three days late, is rejected as the delay was not prejudicial and defendant had the opportunity to submit reply without issue. Plaintiff’s cross-motion seeking leave to amend the Amended Complaint and add causes of action for fraud in the inducement and constructive fraud is denied. The elements of a cause of action for fraud are a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages (Eurycleia Partners, LP v. Sweard & Kissel, LLP, 12NY3d 553, 559 [2009]). Although CPLR 3025 provides that leave to amend a pleading should be “freely” granted, specious amendments should not be allowed (id., Nab-Tern Constructors v. City of New York (Yankee Stadium), 123 AD2d 571 [1st Dept 1986]). In deciding whether to permit an amendment pursuant to CPLR 3025(b), where no cause of action has been stated to begin with, leave to amend will be denied (Spitzer v. Schussel, 48 AD3d 233 [1st Dept 2008]). Plaintiff’s amended complaint refers only in vague detail to an allegedly fraudulent motion and fraudulent statements made by defendant, related to a separate action against plaintiff, to support the additional cause of action and does not offer any facts that permit the Court to even infer the fraud. Similarly, plaintiff’s affidavit in support of the motion contains no facts to support a cause of action for fraud. While the burden for granting leave is not high, Plaintiff must at least establish that “the proffered amendment is not palpably insufficient or clearly devoid of merit” (Fairpoint Cos, LLC v. Vella, 134 AD3d 645 [1st Dept 2015]).Accordingly, it is hereby ORDERED that defendant’s motion for summary judgment is denied except as to the limited portions of the relief sought as set forth above; and it is further ORDERED that plaintiff’s motion to amend the Amended Complaint is denied. Dated: June 29, 2020
