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RIVKIN v. COLEMAN

October 15, 1997

CHERYL OBEDIN RIVKIN, Plaintiff, against SYDNEY REESE COLEMAN, Defendant.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

Sweet. D.J.

 Prior Proceedings

 Defendant's motion for summary judgment was granted with regard to the claims for an accounting, fraud and tortious interference with contract by opinion dated February 9, 1996. See Rivkin v. Coleman, 914 F. Supp. 76 (S.D.N.Y. 1996).

 Subsequent to the first summary judgment motion, discovery was conducted regarding the remaining claims. The instant motion was filed by Dr. Coleman on April 7, 1997. The motion was argued on June 18, 1997, at which time the motion was deemed fully submitted.

 Facts and Background

 The factual background of this case is set forth in the prior opinion of the Court, familiarity with which is assumed, and will only partly be repeated here. See Rivkin v. Coleman, 914 F. Supp. 76 (S.D.N.Y. 1996). In August 1992, plaintiff was hired for secretarial duties by the defendant, Dr. Coleman, who is a physician specializing in plastic and reconstructive surgery. Ms. Rivkin's responsibilities expanded, she became the office manager, and her annual compensation increased from approximately $ 27,000 to $ 50,000.

 Ms. Rivkin gave birth to her first child during her employment with Dr. Coleman. At that time, Dr. Coleman made arrangements for Ms. Rivkin to work part-time at home after giving birth, including, inter alia, shipping a computer to her home. Ms. Rivkin's salary was continued during her two-month leave after the birth of her son. Thereafter she returned to the same job full-time.

 Approximately four years prior to hiring Ms. Rivkin, Dr. Coleman developed a surgical technique to transplant subcutaneous tissue within a patient's body, removing fat tissue from one part of the body and injecting it by means of a "cannula" into other areas of the body. The cannula is a finely-measured syringe-like instrument. Dr. Coleman has a patent application pending for this technique and the cannula, and a trademark application pending for the mark "lipostructure."

 Ms. Rivkin, while employed as the office manager, assisted Dr. Coleman with developing the commercial exploitation of the cannula. Pursuant to this effort, Ms. Rivkin began negotiations with a prospective manufacturer. These negotiations, however, were never completed, and a contract was never consummated.

 On June 16, 1995, Dr. Coleman and Ms. Rivkin had a heated discussion over the contents of a memo Ms. Rivkin had written setting forth the terms of her compensation for the cannula venture as well as the status of the cannula manufacturing negotiations. Their relationship immediately began to deteriorate. On June 20, Ms. Rivkin told Dr. Coleman that she was pregnant with her second child. In early July Dr. Coleman hired an employee who Ms. Rivkin alleges was intended as her replacement. Dr. Coleman fired Ms. Rivkin on August 7, 1995.

 Ms. Rivkin's complaint claims that during her employment, she and Dr. Coleman formed a joint venture to develop the cannula, the gross profits of which were to be divided 20% to her and the balance to Dr. Coleman. She further alleges that Dr. Coleman fired her upon learning of her pregnancy. Dr. Coleman denies these allegations.

 Discussion

 I. Standard For Summary ...


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