CPLR R. 3211(a)(1): Affidavits are not documentary evidence. Also IK.

The decision will surely be of use to some no-fault types.  For a case with a more intricate discussion of what documentary evidence is and is not, read Fontanetta.

CPLR R. 3211(a)(1)

Hernandez v Chefs Diet Delivery, LLC, 2011 NY Slip Op 00647 (App. Div., 2nd 2011)

Contrary to the determination of the Supreme Court, the defendants failed to submit documentary evidence conclusively establishing that the plaintiffs were independent contractors and not employees (see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87-88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520). Initially, the federal income tax documents submitted by the defendants which identified some of the plaintiffs as independent contractors were insufficient to conclusively establish that the plaintiffs and the other drivers in the putative class were independent contractors. "While the manner in which the relationship is treated for income tax purposes is certainly a significant consideration, it is generally not singularly dispositive" (Gagen v Kipany Prods., Ltd., 27 AD3d 1042, 1043; see Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882). Furthermore, the various internal documents and the noncompete and confidentiality agreement signed by one of the plaintiffs were similarly insufficient to conclusively establish that the plaintiffs and the other putative class members were independent contractors. "The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive" (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518; see Gfeller v Russo, 45 AD3d 1301; Shah v Lokhandwala, 265 AD2d 396; Matter of Wilde [Enesco Imports Corp.—Sweeney], 236 AD2d 722, [*3]723; Carrion v Orbit Messenger, 192 AD2d 366; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222). In fact, to the extent that the noncompete provision of the agreement prohibited any of the drivers from engaging in other businesses that deliver food products on a regularly scheduled basis, the agreement itself weighed in favor of a finding that the drivers were not independent contractors (see Bynog v Cipriani Group, 1 NY3d at 198; cf. Rokicki v 24 Hour Courier Serv., 294 AD2d 555; Matter of Seaver [Glens Falls Newspapers-Hartnett], 162 AD2d 841). To the extent that the Supreme Court relied on the affidavits of several of the defendants, the Supreme Court erred as those affidavits were not documentary evidence (see Suchmacher v Manana Grocery, 73 AD3d 1017; Fontanetta v John Doe 1, 73 AD3d 78, 85; Berger v Temple Beth-El of Great Neck, 303 AD2d 346).

The bold is mine. 

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