The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
Plaintiff Thomas H. Williams sold medical products for defendant CF Medical, Inc. from 1998 through 2005, when his contract was not renewed. Plaintiff claims Defendant discriminated against him based on age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and the New York Human Rights Law, N.Y. Exec. LAW § 290 et seq. ("NYHRL"). Plaintiff also asserts a claim for breach of contract under New York common law.
Presently before the court are cross motions for summary judgment pursuant to Fed. R. Civ. P. 56 by Plaintiff and by Defendant. The motions are considered on the voluminous papers submitted, without oral argument. Because the court finds as a matter of law that Plaintiff was not an "employee" of Defendant within the meaning of the ADEA and NYHRL, but instead was an independent contractor, summary judgment is granted in favor of Defendant on the age discrimination claims. Because Plaintiff fails to assert the diversity jurisdiction of this court, the breach of contract claim is dismissed without prejudice.*fn1
II. Summary Judgment Standard
A motion for summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "In ruling on a motion for summary judgment, the district court may rely on any material that would be admissible or usable at trial." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation and citation omitted).
The movant has the burden to show that no genuine factual dispute exists. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970)). Moreover, when the court is deciding a motion for summary judgment, it must resolve all ambiguities and draw all reasonable inferences in the non-movant's favor. See id.
When deciding whether a material issue of fact is in dispute, the court is cognizant that a fact is "material" if "it might affect the outcome of the suit under governing law." White v. Haider-Shah, No. 9:05-CV-193, 2008 WL 2788896, at *4 -5 (N.D.N.Y. Jul. 17, 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Also, "[a] material fact is genuinely in dispute 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id., quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
The issue of whether Plaintiff was an employee of Defendant or an independent contractor is aggressively disputed by the parties. The court's task of sifting through the statements of undisputed material fact -- comprised of 195 paragraphs in Plaintiff's submissions and 125 paragraphs in Defendant's submissions -- as well as the accompanying voluminous record, has been compounded by the failure of both parties to adhere to this court's local rules. For example, despite this court's rule that "[e]ach fact listed shall set forth a specific citation to the record where the fact is established[,]" and "[e]ach denial shall set forth a specific citation to the record where the factual issue arises[,]" the parties, more frequently the Plaintiff, either fail to include any citation at all, or cite generally an affidavit, declaration or deposition without referencing a specific page or paragraph number. See N.D.N.Y. R. 7.1(a)(3) (emphasis added).
The following facts are either undisputed or, where disputed by Defendant, such dispute is deemed irrelevant because the court reaches its conclusions as to same, as it must, by resolving all ambiguities and drawing all reasonable inferences in Plaintiff's favor. It also should be noted that, pursuant to Local Rule 7.1(a)(3), the court deems admitted any statement of material fact that is not specifically controverted by the opposing party. See id.
Defendant CFM became incorporated in 1996 by Constance Frisch ("Frisch"), who is its sole owner and president. Defendant sells various manufacturers' medical equipment and supplies, the majority of which are Philips Medical ("Philips") products. Defendant contracts with Philips as a manufacturer's representative and also as a distributor of its products. Plaintiff Williams was a sales representative for Defendant from 1998 until 2005. The parties entered into yearly contracts, beginning January 1, 1998, and ending December 31, 2005. See Exs. P and Q to Aff. of Thomas H. Williams, Jan. 2, 2008, ¶ 7, Dkt. No. 12 ("Williams Aff. I"). On October 24, 2005, Frisch notified Plaintiff that Defendant would not be renewing his contract for 2006. Plaintiff commenced this action July 5, 2006.
According to Plaintiff, Frisch never told him he would be or was an employee for Defendant. Plaintiff was paid on straight commission for his services to Defendant and never received a salary. Plaintiff did not receive any health or dental insurance from Defendant, nor did he participate in Defendant's retirement plan. In fact, while Plaintiff asked Frisch if he could participate in the health and retirement plans, Frisch denied that request. Moreover, Plaintiff did not receive any paid vacation or sick time from Defendant.
It is undisputed that Plaintiff worked out of his home and was responsible for the expenses related to his position as a sales representative, including his car, gas, computer, fax machine, internet, postage, storage, utilities, phone, and all of the supplies necessary for his office. Plaintiff also had the ...