This is a Freelance Isn't Free Act (FIFA) action, brought by plaintiff, John D. Whitfield, against defendant, Law Enforcement Employees Benevolent Association (LEEBA). It is undisputed that in November 2018, defendant hired plaintiff to work on defendant's website on a freelance basis. According to plaintiff, defendant also hired him to perform paralegal services. Plaintiff claims that defendant failed to provide a written contract and to pay him in a timely fashion in violation of FIFA.

Plaintiff now moves for summary judgment on his complaint and for dismissal of defendant's affirmative defenses. (NYSCEF No. 137 at 1 [notice of motion].) Defendant cross-moves for summary judgment dismissing the complaint. The motions are granted in part and denied in part.

I. Whether Plaintiff has Established a Rebuttable Presumption of a FIFA Violation

FIFA "provide[s] legal protections for freelance workers against nonpayment for work performed." (Chen v Romona Keveza Collection LLC, 208 AD3d 152, 155 [1st Dept 2022].) A freelance worker may file a FIFA complaint either with the commissioner of the Department of Consumer and Worker Protection or directly in court. (See New York City Administrative Code §§ 20-931 [a], 20-933 [a].) If the worker files a complaint with the commissioner, the commissioner will send the hiring party a written notice of the complaint and a copy of the complaint itself. (Id. § 20-931 [d].) The hiring party must then respond to the commissioner within 20 days. (Id. § 20-931 [e] [3].) The hiring party's "failure to respond to the complaint creates a rebuttable presumption in any civil action commenced pursuant to this chapter that the hiring party committed the violations alleged in the complaint." (Id. § 20-931 [d].)

Plaintiff argues that he has presumptively established that defendant committed the alleged FIFA violations. Plaintiff says that he filed a complaint with the commissioner and that defendant never responded. Defendant does not dispute that it failed to respond to the commissioner. Defendant contends instead that the commissioner lacked jurisdiction to hear the plaintiff's FIFA claims in the first place. Therefore, defendant asserts, it did not need to respond to the commissioner, such that the rebuttable presumption has not been triggered by the absence of a response.

The commissioner will lack jurisdiction over a FIFA dispute when "[e]ither party to the contract has initiated a civil action in a court of competent jurisdiction alleging a violation of this chapter or a breach of contract arising out of the contract that is the subject of the complaint filed" with the commissioner.^[FN1] (Administrative Code § 20-931 [c] [1] [a] [emphasis added].)

According to defendant, the commissioner lacked jurisdiction because plaintiff had commenced an action on the same facts in Kings County before filing his complaint with the commissioner. (See Whitfield v Law Enforcement Employees Benev. Assn. (LEEBA), Index No. 523750/2021.^[FN2] ) The Kings County action involved many of the same factual circumstances that [*2]are alleged here (e.g., that plaintiff built defendant's website.) But plaintiff's claims in that action sounded in fraud, unjust enrichment, and the Labor Law—not breach of contract. (See NYSCEF No. 22 [complaint in Kings County action].) Absent a breach-of-contract claim, the commissioner still had jurisdiction over plaintiff's FIFA claims. In turn, defendant's failure to respond to the commissioner gives rise to a rebuttable presumption in plaintiff's favor.

Given plaintiff is entitled to the rebuttable presumption that defendants violated FIFA—in this instance, Administrative Code §§ 20-928 and 20-929—plaintiff has made out his prima facie case for summary judgment on these claims.

II. Administrative Code § 20-929 Claim ^[FN3]

Plaintiff asserts that defendant violated Administrative Code § 20-929 by failing to make timely payments and by requiring that plaintiff "accept no compensation until the union's seized funds were returned as a condition of . . . payment."^[FN4] (NYSCEF No. 138 at 14 [internal quotation marks omitted]." Defendant argues that it paid plaintiff in full and that it did not need to make payments within 30 days if the parties agreed to payment at a later date—in this case, after defendant regained access to its funds.^[FN5] (NYSCEF No. 153 at 7-8.)

Administrative Code § 20-929 (a) provides that "the contracted compensation be paid to the freelance worker" when "compensation is due under the terms of the contract" or, if not specified, within 30 days after the freelance worker completes his performance of services. In contrast, "[o]nce a freelance worker has commenced performance of the services under the contract, the hiring party shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount of the contracted compensation." (Id. § 20-929 [b].)

As stated above, defendant argues that the parties were permitted under § 20-929 to agree [*3]to payment after defendant's funds were restored. (NYSCEF No. 153 at 8.) But defendant has not shown that this occurred here. Defendant speculates that plaintiff knew defendant lacked access to its funding before he started working for defendant (see id.); it does not provide evidence of plaintiff's actual knowledge. And the evidence to which defendant does cite (NYSCEF No. 145 at 27 [plaintiff's deposition] also suggests that plaintiff believed he would be paid every month and that defendant told him it would need to hold off on compensating him after he had already worked on the website (see id. at 13-14).

Additionally, defendant argues that it paid plaintiff in full, and therefore that the § 20-929 claim is not viable. But this court is not persuaded that, even assuming defendant did pay plaintiff in full, that those payments would constitute a defense to plaintiff's § 20-929 claim for untimely payments. Accordingly, the branch of plaintiff's motion for summary judgment on his § 20-929 claim with respect to the website services is granted.

Under Administrative Code § 20-933 (3), plaintiff is entitled to "double damages, injunctive relief and other such remedies as may be appropriate." Plaintiff was not paid timely for $7,275.82 worth of work he performed (and expenses incurred) for defendant from December 2018 through July 6, 2020. (NYSCEF No. 147.^[FN6] ) Plaintiff is therefore entitled to double that amount: $14,551.64.

Plaintiff also seeks summary judgment on his § 20-929 claim about freelance paralegal services performed in 2019. (NYSCEF No. 138 at 3.) In opposition, defendant submits an affidavit from its president, Jakwan Rivers, who represents that he never hired plaintiff to perform any paralegal services.^[FN7] (NYSCEF No. 152; NYSCEF 143 at 16.) Rivers further testified that "plaintiff was never hired as a paralegal or any form of legal representation for LEEBA." (NYSCEF No. 143 at 61.) The court concludes that defendant has raised an issue of fact about whether defendant was hired to perform paralegal services.

III. Administrative Code § 20-928 Claim

Administrative Code § 20-928 provides that "[w]henever a hiring party retains the services of a freelance worker and the contract between them has a value of $800 or more, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding 120 days, the contract shall be reduced to writing." A § 20-928 claim is subject to a two-year statute of limitations. (See id. § 20-933 [2].)

Plaintiff claims that he proposed a contract to defendant and on multiple occasions tried but that he could not get defendant to sign it. (See NYSCEF No. 138 at ¶¶ 4, 10.) In response, defendant argues that "[i]f the Court or jury could theoretically find that the unsigned contract was made binding due to Plaintiff's performance, Section 20-928 would not have been violated [*4]because a written contract would exist." (NYSCEF No. 153 at 7.) But this argument contradicts the purpose of § 20-928, namely to require written contracts for freelance workers. Additionally, this argument sounds in breach-of-contract principles, rather than the statutory requirements of FIFA.

Defendant also contends that plaintiff lacks a timely cause of action under § 20-928. Plaintiff brought this action on May 27, 2022. The portion of plaintiff's claim that accrued before May 27, 2020, would normally be time-barred by § 20-928's two-year limitations period. (See Id. § 20-233 [a] [2].) Plaintiff argues, however, that he brought this action within two years of having learned of defendant's alleged fraud, and therefore that defendant should be estopped from asserting the statute of limitations against him. (See NYSCEF No. 28 at 2-3 [memo on mot seq 004.) In response, defendant asserts that plaintiff has not provided admissible evidence of fraud. (NYSCEF No. 153 at 8.)

In seeking to apply the doctrine of equitable estoppel, "a plaintiff may not rely on the same act that forms the basis for the claim—the later fraudulent misrepresentation must be for the purpose of concealing the former tort." (Ross v Louise Wise Services, Inc., 8 NY3d 478, 491 [2007].) Here, misrepresentation is not an element of plaintiff's § 20-928 FIFA claim for failure to provide him with a written contract.

Plaintiff represents in his affidavit that defendant falsely and repeatedly told him—over several years—that when defendant's money was returned, it would more than pay plaintiff in full. (NYSCEF No. 138 at ¶ 29 [plaintiff's affidavit].) In essence, plaintiff represents that defendant strung him along with promises of payment that it never intended to fulfill; and that he detrimentally relied on those promises. And defendant provides no countervailing evidence that it did intend to pay him at the time it made the promises at issue, and was simply unable later to carry out its intention to pay. On this record, plaintiff has established that the doctrine of equitable estoppel applies, making the entirety of his § 20-928 claim is timely.

As described above, plaintiff earned $7,275.82 from December 2018 through July 6, 2020. This amount exceeds the statutory threshold of $800. (Administrative Code § 20-928 [a].) Accordingly, plaintiff is entitled to summary judgment on his § 20-928 claim.

Administrative Code § 20-933 provides that "[a] plaintiff who prevails on a claim alleging a violation of section 20-928 and on one or more claims under other provisions of this chapter shall be awarded statutory damages equal to the value of the underlying contract for the violation of section 20-928 in addition to the remedies specified in this chapter for the other violations." Because plaintiff has prevailed on his § 20-929 claim, he is entitled to an additional $7,275.82 in damages on his § 20-928 claim.

IV. Affirmative Defenses

Plaintiff seeks to dismiss defendants' affirmative defenses. The request to dismiss defendant's first affirmative defense, that the complaint fails to state a cause of action, is denied because defendant may raise this defense at any time.

Defendant's second, third, fourth, sixth, and seventh defenses are each tort- or contract-based defenses; they do not rebut the FIFA claims that plaintiff is asserting here. The fifth defense, unclean hands, is an equitable defense that cannot defeat a statutory claim for damages. The eighth defense, that plaintiff is barred from asserting his claims in this action "by virtue of estoppel, res judicata, laches, and/or issue preclusion" (NYSCEF No. 39 at 4) is unsupported by any factual allegation. And the ninth affirmative defense merely reserves the right to raise additional defenses. Plaintiff's requests to dismiss these defenses are granted.

V. Adverse Inference

Plaintiff asks the court to draw an adverse inference against defendant for failing to provide some 2021 receipts in discovery. (NYSCEF No. 139 at 19-20.) According to plaintiff, those receipts "would have proven that LEEBA created its new website so rapidly that it supports the claim that the union had no intentions of compensating Plaintiff because it had this new website on standby." (Id.) It is unclear to the court, however, whether those receipts would impact this court's determination on plaintiff's FIFA claims, especially because plaintiff stopped working as a freelance worker before 2021. The court therefore declines to draw an adverse inference.

Accordingly, it is

ORDERED that the branch of plaintiff's motion for summary judgment on his Administrative Code § 20-929 claim for freelance website services provided is granted, and the branch of defendant's cross-motion dismissing this claim is denied; and it is further

ORDERED that the branch of plaintiff's motion for summary judgment on his Administrative Code § 20-929 claim for freelance paralegal services is denied, and the branch of defendant's cross-motion dismissing this claim is denied; and it is further

ORDERED that the branch of plaintiff's motion for summary judgment on his Administrative Code § 20-928 claim is granted, and the branch of defendant's cross-motion dismissing this claim is denied; and it is further

ORDERED that the branch of plaintiff's motion to dismiss defendant's affirmative defenses is denied with respect to the first affirmative defense, and otherwise granted; and it is further

ORDERED that plaintiff's claim for freelance paralegal services is severed and shall continue; and it is further

ORDERED that plaintiff is awarded a judgment against defendant for $21,827.46 ($14,551.64 on the § 20-929 claim plus $7,275.82 on the § 20-928 claim); plus costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the parties appear for a telephonic status conference on September 2, 2025, regarding the remaining claim in the action; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant; and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.