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Les Kramsky v. Chetrit Group

June 13, 2011

LES KRAMSKY, PLAINTIFF,
v.
CHETRIT GROUP, LLC, JOSEPH CHETRIT JUDA CHETRIT, MEYER CHETRIT, AND JACOB CHETRIT DEFENDANT.
LES KRAMSKY, PLAINTIFF,
v.
CHETRIT GROUP, LLC DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:

OPINION & ORDER

This dispute is between Les R. Kramsky ("Plaintiff") and Chetrit Group, LLC, Joseph Chetrit, Juda Chetrit, Meyer Chetrit, and Jacob Chetrit (collectively "Defendants") for breach of contract, nonpayment of wages, promissory estoppel, and religious discrimination. Before the Court are Defendants' motion for summary judgment and Plaintiff's motion to strike evidence included in Defendants' motion. For the following reasons Defendants' motion is granted in part and denied in part, and Plaintiff's motion is denied.

I.Background*fn1

Plaintiff is an experienced real estate attorney who began working for Chetrit Group, LLC on April 20, 2009. Prior to working for Chetrit Group, LLC Plaintiff owned a private law practice, which he gave up near the time he began working for Chetrit Group, LLC. At or about the time he began working for Chetrit Group, LLC, Plaintiff signed an employment agreement ("the Agreement") that designated him as a "Consultant (Independent Contractor)" for a period of 90 days and as a "W-2 Employee" thereafter. None of the Defendants signed the Agreement.

Following the initial 90 day period, Plaintiff was not designated as a W-2 employee, although he repeatedly asked Defendants to do so. Plaintiff threatened to report Defendants to the Labor Department for not making him a W-2 employee and failing to place him on the company's health insurance plan. Plaintiff alleges that he was hired at least in part because Defendants believed that he was an Orthodox Jew and that when Defendants learned he was not Orthodox, he was treated differently.*fn2 Plaintiff was terminated in January 2010.

Plaintiff filed his first action (hereinafter "Chetrit I") on March 24, 2010, which was later amended on April 16, 2010 and then on May 6, 2010. Chetrit I pleads causes of action for: (1) promissory estoppel; (2) religious discrimination in violation of New York City Administrative Code § 8-502(a), et seq.; (3) being made to suffer smoking in the workplace, and (4) retaliation for his complaints about smoking, in violation of New York City Administrative Code § 17-504; (5) nonpayment of wages in violation of New York State Labor Law § 198, et seq.; (6) retaliation in violation of New York State Labor Law § 215; and (7) breach of contract. On November 16, 2010, the Court dismissed Plaintiff's third, fourth and sixth causes of action.

On December 20, 2010, after receiving a Right to Sue letter, Plaintiff filed another action under Title VII (hereinafter "Chetrit II") seeking redress for Defendants' alleged religious discrimination. By order dated January 10, 2011, this Court consolidated Chetrit I and Chetrit II. On March 3, 2011, Defendants filed the present motion for summary judgment, and on April 13, 2011 Plaintiff moved to strike affidavits and certain documents submitted by Defendants in support of their motion for summary judgment.

II.Motion to Strike

Plaintiff moves pursuant to Rule 56(e) to strike paragraphs 2, 4, 5, 7, 8, 10, 12, 13, 16, 17 and 20 of the Affidavit of Joseph Chetrit dated October 18, 2010 ("Chetrit Affidavit"), and exhibits K, M, and N1-N6 of the Affidavit of Jordan Sklar dated March 4, 2011 ("Sklar Affidavit").*fn3

A district court has broad discretion to decide whether to admit or exclude evidence on a motion for summary judgment. Raskin v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir. 1997) ("[I]t is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment."). Rule 56(e) provides that on a summary judgment motion, "[s]supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). A court may "strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999).

With respect to the Chetrit Affidavit, Plaintiff argues that paragraphs 2, 4, 5, 7, 8, 10, 12, 13, 16, 17 and 20 are hearsay and not based on the affiant's personal knowledge. Defendants argue that as a principal of Chetrit Group, LLC, Joseph Chetrit is intimately connected with its daily operations and has personal knowledge about the affirmations at issue. After reviewing the Chetrit Affidavit, this Court finds that the statements contained in ¶¶ 2, 3, 8, 10, 13, 16, 17, and 20 are based on personal knowledge. To the extent that portions of ¶¶ 4, 7, and 12 are not based on personal knowledge, the Court will not consider those portions in resolving the motion.

Turning to the exhibits to the Sklar Affidavit, Plaintiff argues that they are inadmissible because the exhibits are unauthenticated, incomplete, and hearsay.*fn4 The exhibits that contain hearsay are business records. Where the Defendants would have the opportunity to authenticate these exhibits at trial, the Court will not strike them at this stage. However, to the extent that Plaintiff disputes the authenticity of these exhibits or argues that the exhibits are not self-authenticating, this Court will not consider them undisputed for the purposes of the summary judgment motion. Therefore, Plaintiff's motion to strike from the record affidavits and documents submitted by Defendants in support of their motion for summary judgment is denied.

III.Motion for Summary Judgment

A.Legal Standard

A motion for summary judgment must be granted if the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw all inferences against the moving party. LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). Summary judgment should be granted "against a party who fails to make a ...


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