ZATORSKI v. ISLAND TRANSPORTATION CORPORATION (2025)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered December 3, 2024, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs.

Supreme Court properly denied defendant Island Transportation Corporation's (ITC) pre-answer motion to dismiss the complaint because ITC's documentary evidence did not “utterly refute[ ] plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]).  In this class action suit plaintiff, on behalf of himself and similarly situated employees of ITC, alleges that ITC did not provide overtime compensation to its drivers who worked more than a 40–hour work week.  ITC, as a company engaged in the interstate transport of goods, is subject to the jurisdiction of the Federal Department of Transportation and thus, it contends, the motor carrier exemption to the Fair Labor Standards Act applies, exempting ITC from any overtime compensation requirements for plaintiff and the putative class (see 29 USC §§ 207, 213[b][1]).

A determination as to whether the motor carrier exemption applies to an employee depends on the nature of both the employer's and employees' activities (see Dauphin v. Chestnut Ridge Transp., Inc., 544 F..Supp.2d 266, 273 [S.D.N.Y. 2008]).  ITC's documentary evidence failed to conclusively show at this stage of the proceeding that interstate travel constituted a “natural, integral and ․ inseparable part” of plaintiff's duties, such that at any time during his employment it could be found that plaintiff was likely to be called upon to perform interstate travel (see Morris v. McComb, 332 U.S. 422, 433, 68 S.Ct. 131, 92 L.Ed. 44 [1947]).  Specifically, the documentary evidence did not resolve all the factual issues raised by plaintiff's allegations, including information as to the policy and practice followed by ITC in assigning interstate routes, how ITC's interstate assignments were made, why plaintiff was assigned 14 0f 16 interstate total career routes during a three-month period but no interstate routes for years at a time during his decade-long employment with ITC. While ITC offered evidence such as collective bargaining agreements and signed wage notices to indicate plaintiff was regularly apprised to expect interstate route assignments as part of his work activities, defendant's actual practice of assigning the interstate routes was not conclusively established by the documentary evidence (see Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d at 275–276;  see also Morris v. McComb, 332 U.S. at 433, 68 S.Ct. 131).

To the extent the affidavit of ITC's president attempted to supply such missing facts, the affidavit does not constitute documentary evidence for purposes of a CPLR 3211(a)(1) motion (see Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 438, 992 N.Y.S.2d 7 [1st Dept. 2014];  Tsimerman v. Janoff, 40 A.D.3d 242, 242, 835 N.Y.S.2d 146 [1st Dept. 2007]).