United States District Court, S.D. New York
June 2, 2004.
JOEL PATRAKER, Plaintiff
THE COUNCIL ON THE ENVIRONMENT OF NEW YORK CITY, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Defendants move again for summary judgment dismissing the second
through fourth claims for relief in the second amended complaint. The
Court assumes familiarity with its decision on a prior motion. Patraker
v. Council on the Environment, No. 02 Civ. 7382 (LAK), 2003 WL 22703522
(S.D.N.Y. Nov. 17, 2003). There is no need to recapitulate the facts
except as set forth herein.
1. The third and fourth causes of action assert claims for retaliation
in violation of ERISA, 29 U.S.C. § 1140, and breach of contract,
respectively. The prior motion for summary judgment denied the motion
insofar as it related to the second through fourth causes of action
without prejudice to renewal only insofar as the second cause of action
was concerned. Defendants are not entitled to yet another bite at the
apple with respect to the third and fourth causes.
2. The second claim for relief seeks to recover ERISA benefits on the
theory that the plaintiff was an employee of defendant Council from 1983
to 2002. This claim was denied by the plan administrator for reasons
previously summarized, essentially that Patraker was not an employee.
Patraker, 2003 WL 22703522, at *3. The Court denied the defendants' prior
motion for summary judgment dismissing this claim on the ground that they
had failed to present the full administrative record to the Court. Id. at
*5. Defendants have renewed on what purports to be the full
administrative record. But it now is clear that the Council relied in
part of unspecified personal knowledge in making its determination. Absent
evidence of what this knowledge was the motion must be denied.
Accordingly, defendants' motion for summary judgment dismissing the
second, third and fourth claims for relief is denied. Plaintiff may conduct a
deposition of the Administrator limited to determining what personal
knowledge concerning plaintiffs relationship with the Council she
possessed prior to November 8, 2002. The deposition shall not exceed seven
hours and shall be completed no later than June 18, 2004. The trial shall
commence on June 21, 2004 at 10 a.m. Assuming that a jury has not been
waived, the trial will be bifurcated. The third and fourth claims for
relief shall be tried to the jury following which the Court will try the
second claim for relief non-jury. Evidence relevant only to the second
claim for relief will not be received before the jury.
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