SHANKLIN v. MC2 LLC (2018)

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 26, 2017, which, to the extent appealed from as limited by the briefs, granted defendant model management agencies' CPLR 3211 motions to dismiss to the extent of limiting plaintiff fashion models' claims to those accruing on or after October 24, 2007 and dismissing plaintiffs' causes of action pursuant to Labor Law § 191 without prejudice, unanimously modified, on the law, to dismiss the breach of contract claim of Vanessa Perron as against defendant Next Management, LLC (Next), and reinstate the Labor Law § 191 claim of Melissa Baker as against defendant Click Model Management, Inc. (Click), and otherwise affirmed, without costs.

The motion court correctly ruled that “usage payments,” payments models receive in the event third parties use images taken at photo shoots, are not wages, as defined by article 6 of the Labor Law (Labor Law § 190[1];  see also Truelove v. Northeast Capital & Advisory, 95 N.Y.2d 220, 715 N.Y.S.2d 366, 738 N.E.2d 770 [2000];  Beach v. Touradji Capital Mgmt., LP, 128 A.D.3d 501, 7 N.Y.S.3d 895 [1st Dept. 2015] ).  The motion court also correctly ruled that plaintiffs stated a cause of action that they were employees, notwithstanding the agreements between the parties stating that they were independent contractors (see Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 [2003];  see also Bizjak v. Gramercy Capital Corp., 95 A.D.3d 469, 944 N.Y.S.2d 57 [1st Dept. 2012] ).  It cannot be said at this stage that plaintiffs' tax status is dispositive on their Labor Law status (see Matter of Campbell, 143 A.D.3d 1026, 40 N.Y.S.3d 191 [3d Dept. 2016], lv dismissed 31 N.Y.3d 925, 72 N.Y.S.3d 22, 95 N.E.3d 324 [2018] ).  Plaintiffs' Labor Law claims pursuant to §§ 193 and 195(3) stated a cause of action, while their claims pursuant to Labor Law § 191, with the exception of the claim of Melissa Baker, were insufficiently pled.  Baker timely alleges that Click failed to pay her for a Sports' Illustrated shoot.

Click's argument that the claims of breach of contract of Michelle Griffin–Trotter were insufficiently pleaded is unpersuasive, as she pleaded performance in appearing at photo shoots, and breach and damages, in that Click claimed improper expenses against her earnings, reducing the fee paid to her.  Whether she was fully paid cannot be determined on this motion on the pleadings.  Next, however, is correct in arguing that Perron's claim for breach of contract is untimely, as her contract terminated in 2006, and she makes no allegations that she earned, but was not paid, any usages on or after October 24, 2007.

We have considered the parties' remaining contentions and find them unavailing.