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PATRAKER v. COUNCIL ON THE ENVIRONMENT OF NEW YORK

United States District Court, S.D. New York


June 2, 2004.

JOEL PATRAKER, Plaintiff
v.
THE COUNCIL ON THE ENVIRONMENT OF NEW YORK CITY, et al., Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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. ยง 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.

 

SO ORDERED.
20040602

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