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SIMON v. SAFELITE GLASS CORP.

October 28, 1996

MATTHEW SIMON, Plaintiff,
v.
SAFELITE GLASS CORP., Defendant.



The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 On April 20, 1994, plaintiff Matthew Simon ("Simon") brought an action against defendant Safelite Glass Corporation ("Safelite") alleging age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"). On February 5, 1996, the Court denied defendant's motion for summary judgment.

 On February 12, 1996, the date scheduled for trial, Safelite informed the Court it had recently learned that Simon had failed to disclose his successful February 1994 application to the Social Security Administration ("SSA") for Disability Insurance Benefits ("disability benefits") during discovery. The Court ordered further discovery as to plaintiff's application for disability benefits, and granted defendant leave to renew its motion for summary judgment. February 12, 1996 Trial Transcript, at pp. 8-9. Safelite's renewed motion for summary judgment is now before the Court. Also before the Court is Safelite's motion for sanctions pursuant to Rule 11, Fed. R. Civ. P.

 FACTS

 On May 1, 1993, plaintiff Simon lost his position as an auto glass installer at defendant Safelite when it closed the Bay Street branch office where Simon had been employed. On February 14, 1994, when his entitlement to unemployment benefits expired, Simon applied for Federal Disability Insurance. Ramirez Aff. P 4; Ex. C, p.12.; Pl. 3(g) Statement, P 12. As a part of the application process, Simon met with a Social Security representative who interviewed him and transcribed his answers onto a Disability Report. In response to a question concerning changes in Simon's work circumstances, the representative wrote on Simon's behalf, "stayed out on sick leave at times - was finally laid off - reduction in force." In response to the question, "explain how your condition now keeps you from working," the representative wrote, "I was laid off in 3/93 but I have not been able to do any additional work because my vision is getting worse. I have blurriness - not painful but is annoying. I cannot see to do any detail work." Simon also signed an Application for Disability Insurance Benefits, attesting, among other things, to the following:

 
"I became unable to work because of my disabling condition on March 31, 1993. I am still disabled. . . . I agree to notify the Social Security Administration if: -- My medical condition improves so that I would be able to work, even though I have not yet returned to work. -- I go to work whether as an employee or a self-employed person."

 Pl. Rule 3(g) para. 13. Simon Aff. Ex. H (emphasis added).

 Simon's signature on the Application for Disability Insurance Benefits appears under the following paragraph:

 
I know that anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal Law by fine, imprisonment or both. I affirm that all information I have given in connection with this claim is true. *fn1"

 On March 25, 1994, a doctor appointed by the SSA examined Simon and confirmed that Simon suffered from a degenerative eye disease. Simon Aff. Ex. F. On April 13, 1994, a vocational consultant from the New York State Department of Social Services Office of Disability Determination reviewed Simon's medical records, application for disability benefits and disability report and concluded that a finding of disability was in order. Simon Aff. Ex. J.

 On April 20, 1994, Simon filed this action alleging that Safelite fired and refused to rehire him because of his age. The complaint stated:

 
Plaintiff, at all times during his employment, satisfactorily performed all of his duties and responsibilities as an installer and in particular upon information and belief was one of the most productive installers defendant employed in the Metropolitan New York City area. . . . Upon information and belief defendant had and continues to have a distinct policy that limits employment opportunities for older individuals as installers and a further policy to fill vacancies for positions that plaintiff is fully qualified to fill with younger individuals than the plaintiff.

 Stergios Aff., Ex. 1, Complaint, PP 7 & 15 (emphasis added).

 On April 23, 1994, three days after Simon filed his employment discrimination case, the SSA concluded its examination of Simon's disability application and issued a Notice of Award of Disability Insurance ("notice"). The notice stated:

 
We found that you became disabled under our rules on March 31, 1993. . . . You will receive $ 5,230.00 around April 28, 1994. . . . After that you will receive $ 757.00 each month. . . . The decisions we made on your claim are based on information you gave us. If this information changes, it could affect your benefits. For this reason, it is important that you report the changes to us right away.

 Simon Aff. Ex. I.

 Simon admits that "around the end of April, I was informed that I was eligible for benefits . . . which I have been and continue to receive." Simon Aff. P 22.

 Simon states that he has worked occasionally installing auto glass since his termination from Safelite. Ramirez Aff. Ex. C, Deposition of Matthew Simon, pp. 65, 70-71; Stergios 2/5/96 Aff. Ex. 10, 4/19/95 Deposition of Matthew Simon, pp. 30-32. However, despite the instructions in the notice and in the Application for Disability Insurance Benefits which he signed, Simon has not informed the SSA of any change in his medical condition or that he has occasionally returned to work.

 DISCUSSION

 I.

 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

 A. Summary judgment standards

 Summary judgment under Rule 56 is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the burden of proof on a motion for summary judgment. United States v. All Funds, 832 F. Supp. 542, 550-51 (E.D.N.Y. 1993). This burden may be met by showing that the non-moving party has "failed to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322.

 A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, ...


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