Lavergne v. Burden , 665 N.Y.S.2d 272 ( 1997 )

—Judgment, Supreme Court, New York County (Carol Huff, J.), entered February 20, 1996, dismissing the action, and bringing up for review an order, same court and Justice, entered October 25, 1995, which, in an action under Administrative Code of the City of New York § 8-107 (1) (a) and (7) for employment discrimination based on sex and retaliatory discharge, granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs. The appeal from the order is unanimously dismissed, without costs, as superseded by the appeal from the judgment.

Plaintiffs allegations, given every favorable intendment, show that she was an independent contractor, not an employee (cf., Giaimo & Vreeberg v Smith, 192 AD2d 41, 45, appeal dismissed 82 NY2d 803), and, because she did not “carry out work in furtherance of an employer’s business enterprise” (Administrative Code § 8-102 [5]), the action was properly dismissed. Concur—Rosenberger, J. P., Nardelli, Andrias and Colabella, JJ.