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ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Moulton, in matters of first impression, interpreted the Freelance Isn’t Free Act (FIFA) in the context of motions to dismiss. The opinion is detailed and fact-specific and cannot be fairly summarized here. The plaintiffs alleged they were hired by defendants as freelancers and defendants’ failure pay was the basis of the lawsuits pursuant to FIFA. Most of the actions survived the motions to dismiss:

Enacted November 16, 2016 and effective May 15, 2017, FIFA is the first act of its kind in this country to provide legal protections for freelance workers against nonpayment for work performed … . FIFA defines a “freelance worker” as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation” … . A central issue in this case is whether plaintiffs fit within this definition. Chen v Romona Keveza Collection LLC, 2022 NY Slip Op 04702, First Dept 7-26-22

Practice Point: New York City enacted the “Freelance Isn’t Free Act” (FIFA) in 2017–the first law in the nation to specifically address the failure to pay freelancers.

 

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THE PROPERTY OWNER WAS NOT LIABLE FOR THE ACTIONS OF THE INDEPENDENT CONTRACTOR; PLAINTIFF TRIPPED OVER THE HOSE USED BY THE CONTRACTOR TO DELIVER OIL (FIRST DEPT). ​
ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.
THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).
ALTHOUGH A PARTY WHO SIGNS AN AGREEMENT IS USUALLY DEEMED TO HAVE READ IT, A RELATIONSHIP OF TRUST AND CONFIDENCE BETWEEN THE PARTIES MAY ALLOW ONE PARTY TO RELY ON THE ASSURANCES OF THE OTHER, A CERTIFIED BUT UNSIGNED TRANSCRIPT OF A DEPOSITION WAS ADMISSIBLE BECAUSE IT HAD BEEN TIMELY MAILED TO OPPOSING COUNSEL (FIRST DEPT).
ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S DESCRIPTION HAD A GUN, THE POLICE SAW NO SIGN OF CRIMINAL ACTIVITY WHEN THEY APPROACHED AND QUESTIONED THE DEFENDANT, THE SUBSEQUENT SEIZURE AND FRISK OF THE DEFENDANT WAS ILLEGAL (FIRST DEPT).
Fee Agreement Unenforceable as Vague.

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