of independent contractor status. Browning, 885 F.Supp.2d at 605; see also Gagen v. Kipany Prods., Ltd., 27 A.D.3d 1042, 812 N.Y.S.2d 689, 691 (3d Dep’t 2006) (affirming the lower court’s determination, on summary judgment, that the plaintiff was an independent contractor where “his tax returns contained numerous deductions for business purposes associated with independent contractor status”). (Thering Decl., Exs. 41-53). The Court has already discussed the fifth factor as well; there is no dispute that drivers were not “on a fixed schedule.” Instead, drivers were permitted to book in and out as they pleased, could take long breaks from driving whenever they wished, and were free to reject job offers as they liked, with only limited consequences. See, e.g., Chaouni, 963 N.Y.S.2d at 28 (<HOLDING>); Barak, 929 N.Y.S.2d at 318 (holding that the
holding that a difference between 384 days prepreference average number of days to payment and 547 days preference average number of days to payment did not make the payments out of the ordinary course of business holding that delays of 115 days and 101 days were both substantial holding that 120 days notice was satisfied by 30 days work plus 90 days pay holding that a driver was an independent contractor where he had unfettered discretion to determine the days and times he worked with no minimum or maximum number of hours or days imposed by the defendant holding that a difference between approximately 54 days prepreference average days to payment and approximately 67 days preference average days to payment did not make the payments out of the ordinary course of business