From Fernandes v Jadah Carroll, LLC, No. 12665, 158642/19, 2020-02599, 2020 N.Y. Slip Op. 07669, 2020 WL 7391276 (N.Y.A.D. 1 Dept., Dec. 17, 2020):
Defendants demonstrated conclusively that they were not subject to the New York City Human Rights Law’s prohibition on discrimination in employment based on disability because they employed fewer than four persons (see Administrative Code of City of N.Y. § 8–102 [definition of employer] ). Plaintiff’s argument that defendants were subject to the law depends on her contention that the individual defendants were employees because they both took on duties generally performed by employees, such as preparing tax returns. This is insufficient to establish that defendants Sturm and Shurin were employees. Defendants showed that Sturm and Shurin had “control over the conduct of another including selection, payment of wages, and power of dismissal,” which is “[t]he essential element [of being an employer]” (Germakian v. Kenny Intl. Corp., 151 A.D.2d 342, 343, 543 N.Y.S.2d 66 [1st Dept. 1989], lv denied 74 N.Y.2d 615, 549 N.Y.S.2d 960, 549 N.E.2d 151 ; see also Clackamas Gastroenterology Assoc. P.C. v. Wells, 538 U.S. 440, 449–450, 123 S.Ct. 1673, 155 L.Ed.2d 615 ). Their documentary evidence showed that Sturm and Shurin were the sole shareholders and members of defendant companies, that they equally and exclusively directed, managed, and controlled the companies, and that they shared in the profits, losses, and liabilities of the companies; in addition, defendant Sturm’s affidavit stated that, as directors and controllers of the companies, he and Shurin had the authority to hire and fire employees.