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FIRST DEPARTMENT LOCAL RULES

SAMPLE BRIEF TO THE NEW YORK COURT OF APPEALS

This brief filed with the New York Court of Appeals is provided as a writing sample by On-Point Paralegal Services, LLC. Our best effort has been made to maintain a proper format while converting this document to .html for display on the Internet. Names and other personal information has been omitted when possible.

TABLE OF CONTENTS

Table of Authorities ……….………………………………...........................……………...… 2

Procedural History and Statement of Facts …………..……………..… 2

ARGUMENT

I. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE THAT RESULTED IN A DISSENTING OPINION BY JUDGE XXXX CONCERNING WHETHER HER NYCHRL CLAIMS SHOULD HAVE BEEN DISMISSED
……………………………………………………………………………… 14

A. Legislative Intent …………………………………………..

II. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER THE SUPREME COURT HAS THE DISCRETION TO EXTEND THE TIME LIMITATIONS IMPOSED BY CPLR 902
……………………………………………………………………………… 14

A. Discretion to Extend the Time ……………………………

B. Five-Day Mail Rule …………………………………………

C. Lack of Prejudice ………………………………………….

D. Errs of Counsel ……………………………………………

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III. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER HER CLAIMS FOR IMPLIED CONTRACT SHOULD BE DISMISSED
………………………………………………………………………………..

A. Collateral Estoppel …………………………………………

B. Violation of Public Policy …………………………………

C. Issue of At-Will Employment ………………………………

IV. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WAS PREMATURE IN THAT MATERIAL DISCOVERY WAS STILL BEING EXXXXXGED
……………………………………………………………………………………

V. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER THERE WERE DISPUTED MATERIAL FACTS IN ISSUE THAT PRECLUDED SUMMARY JUDGMENT
………………………………………………………………………………

CONCLUSION …………………………………………………………… 18

TABLE OF AUTHORITIES

Caselaws:

Bailey vs. N.Y.C. Transit Authority,
704 N.Y.S.2d 582 (App. Div. 1st Dept. 2000) ………………………

Beechey v. De Sorbo,
383 N.Y.S.2d 925 (App. Div. 3rd Dept. 1976) ……………………………

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Bertram v. SV Danco Corp.,
751 N.Y.S.2d 815 (App. Div. 4th Dept. 2002) ………………………………

Betty v. City of New York,
784 N.Y.S.2d 621 (App. Div. 2nd Dept. 2004) …………………………..

Boyle v. City of New York,
738 N.Y.S.2d 324 (App. Div. 1st Dept. 2002) …………………………..

Caesar v. Chemical Bank,
460 N.Y.S.2d 235 (N.Y. Sup. 1983) ……………………………

Chimenti vs. American Express Co.,
467 N.Y.S.2d 357 (App. Div. 1st Dept. 1983) ……………………………

Clark v. Great Atlantic & Pacific Tea Co., Inc.,
____ N.Y.S.2d ____, 2005 WL 3118177 (App. Div. 2nd Dept. 2005) …

Colombini v. Westchester County Healthcare Corp.,
____ N.Y.S.2d ____, 2005 WL 3543186 (App. Div. 2nd Dept. 2005) …

Czaban v. Czaban,
____ N.Y.S.2d ____, 2005 WL 3434430 (App. Div. 2nd Dept. 2005) …

D'Amico v. Allstate Ins. Co.,
599 N.Y.S.2d 296 (App. Div. 2nd Dept. 1993) ………………………

de Vries v. Metropolitan Transit Authority,
783 N.Y.S.2d 540 (App. Div. 1st Dept. 2004) ……………………

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Forrest v. Jewish Guild for the Blind,
3 N.Y.3d 295 (2004) ……………………………………………………….

Gallo v. Bosco,
216 N.Y.S.2d 501 (App. Div. 2nd Dept. 1961) ………………………….

Ingalls v. Town of Lyndon,
486 N.Y.S.2d 659, 660 (Sup. Ct. 1985) ………………………………….

Leader v. Maroney, Ponzini & Spencer,
97 N.Y.2d 95 (2000) ……………………………………………

Madison Ave. Caviarteria v. Hartford Steam
Boiler Inspection & Ins. Co.,
770 N.Y.S.2d 724 (App. Div. 2nd Dept. 2003) …………………………..

Matter of Naftilos Painting and Sandblasting v. Hartnett,
569 N.Y.S.2d 474 (App. Div. 3rd Dept. 1991) …………………………….

McGrath v. Toys "R" Us, Inc.,
3 N.Y.3d 421, 432-33 (2004) ……………………………………………….

Mead v. Singleman,
____ N.Y.S.2d ____, 2005 WL 3543706 (App. Div. 3rd Dept. 2005). …

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Meraner v. Albany Medical Center,
605 N.Y.S.2d 442 (App. Div. 3rd Dept. 1993), appeal after remand,
621 N.Y.S.2d 208 (App. Div. 3rd Dept. 1995), leave to appeal
dismissed, 85 N.Y.2d 968, 629 N.Y.S.2d 726 (1995) ……………………

MCK Bldg. Associates, Inc. v. St. Lawrence University,
759 N.Y.S.2d 309 (Sup. Ct. 2003) ………………………………………..

Meyerson v. John A. Lynch, Inc.,
287 N.Y.S.2d 475 (App. Div. 2nd Dept. 1968) ……………………………

O'Hara v. Del Bello,
47 N.Y.2d 363 (1979) …………………………………………………

Railroad Commission of California v. Pacific Gas & Electric Co.,
302 U.S. 388 (1938) ………………………………………………………….

RSI Roofing, Inc. v. Hartnett,
576 N.Y.S.2d 645 (App. Div. 3rd Dept. 1991) …………………………….

XXXX v. XXXX Systems, Inc.,
2005 WL 3547036 (App. Div. 1st Dept. 2005) ……………………………

Smith v. Mousa,
759 N.Y.S.2d 482 (App. Div. 1st Dept. 2003) ………………………

Turner v. Caesar,
768 N.Y.S.2d 679 (App. Div. 3rd Dept. 2003) ………………………

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Wahlstrom v. Metro-North Commuter R.R. Co.,
89 F. Supp. 2d 506 (S.D. N.Y. 2000) …………………………………

Yerushalmi & Associates, LLP v. Westland Overseas Corp.,
803 N.Y.S.2d 620 (App. Div. 2nd Dept. 2005) …………………………..

New York Statutes:

CPLR § 902 …………………………………………………..

CPLR § 2004 ……………………………………………………….

CPLR 2103(b)(2) …………………………………………………..

CPLR 3212(f) ………………………………………………………..

CPLR § 5513(b) …………………………………………………..

CPLR § 5602(a)(1)(i) …………………………………………………..

CPLR § 5602(b)(1) …………………………………………………..

CPLR § 5611 …………………………………………………..

First Department Local Rules:

First Department Local Rule § 600.14(b) …………………………………

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Secondary Authorities:

Alexander, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B,
CPLR C2103:3, at 738 …………………………………………………..

Report of Legal Div., Comm. on Gen. Welfare,
Local Law Bill Jacket, Local Law No. 39
[1991] of City of New York ………………………………………………..

PROCEDURAL HISTORY AND STATEMENT OF FACTS

Plaintiffs will respectfully rely upon the Procedural History and Statement of Facts set forth in their appellate briefs in support of this motion.

JURISDICTION

This motion has been filed with the Appellate Division within 30 days of service upon plaintiffs of the Appellate Division's Final Order and Opinion. CPLR § 5513(b); First Department Local Rule § 600.14(b); CPLR § 5513(b). A copy of the court's Opinion and Order, which has been officially published at ____ N.Y.S.2d ____, 2005 WL 3547036 (App. Div. 1st Dept. 2005), is attached hereto in accord with First Department Local Rule § 600.14(b).

A. Plaintiff XXXX.

The Supreme Court of New York, Appellate Division, First Department, has the right to adjudicate Plaintiff XXXX XXXX's Motion for Leave to Appeal to the Court of Appeals from an Interlocutory Order entered by the Appellate Division on December 29, 2005. The Appellate Division has this authority by virtue of CPLR § 5602(b)(1).

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This case originated in the Supreme Court of New York, County of New York, and was partially disposed of by the trial court on a motion for summary judgment. The December 29, 2005 Order was interlocutory in nature and is not a Final Order within the meaning of CPLR § 5611. Plaintiff XXXX still has claims pending against defendant in the trial court.

B. Plaintiff XXXX.

The Supreme Court of New York, Appellate Division, First Department, has the right to adjudicate Plaintiff Kai XXXX's Motion for Leave to Appeal to the Court of Appeals from a Final Order entered by the Appellate Division on December 29, 2005. The Appellate Division has this authority by virtue of CPLR § 5602(a)(1)(i).

This case originated in the Supreme Court of New York, County of New York, and was totally disposed of by the trial court on a motion for summary judgment as to Plaintiff XXXX. The December 29, 2005 Order was a Final Order within the meaning of CPLR § 5611 that totally disposed of his appeal.

C. Severability.

The two plaintiffs are representing two distinct classes of persons in proposed class action lawsuits against the same defendant employer. As such, plaintiffs respectfully submit that their appeals are severable if necessary for purposes of further review in the Court of Appeals.

ARGUMENT

I. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE THAT RESULTED IN A DISSENTING OPINION BY JUDGE XXXX CONCERNING WHETHER PLAINTIFF XXXX'S NYCHRL CLAIMS SHOULD HAVE BEEN DISMISSED

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The Appellate Division has reversed a trial court Order by dismissing Plaintiff XXXX's claims brought under the New York City Human Rights Law. In making that decision the majority primarily relied upon Wahlstrom v. Metro-North Commuter R.R. Co., 89 F. Supp. 2d 506 (S.D. N.Y. 2000). See Slip Opinion, Pgs. 11-12.

The majority's view is that since Plaintiff XXXX's worksite was located in Jersey City, that notice of her termination was provided to her while she was physically present in Jersey City, and since her residence is located in the State of New Jersey, that her NYCHRL claims had to be dismissed. Id. Justice XXXX provided a dissenting opinion and vote on that issue, however. Justice XXXX pointed-out that,

… XXXX began her employment with defendant in the United States in its New York City office, the company's only branch office in this country, and her first two assignments outside that office were to clients' offices in New York City. Although she was discharged while working at a third client's office in New Jersey, the discharge allegedly was in retaliation for speaking to other employees about defendant's employment practices and trying to advise the foreign employees about their rights - in defendant's New York City office. As the motion court emphasized, XXXX was terminated not merely from her temporary assignment in New Jersey, but from her employment from defendant in New York City, for conduct that took place in New York City, as a result of a decision that was made in New York City. Thus, XXXX felt the impact of the discharge in New York City, and the NYCHRL is applicable to her cause of action.

[Slip Opinion, Justice Elllerin, dissenting in part, at Page 16]

Although one dissent does not grant a party review as of right before the Court of Appeals, it supports the position that minds can differ on this question of law. While it is true that the NYCHRL claims were not allowed to proceed in Wahlstrom because the claimant was on a train in White Plains at the time when she alleged she was sexually harassed, it is also true as Justice XXXX pointed out that the harassment in that case was an isolated incident. By contract, Plaintiff XXXX is alleging a continuing course of conduct that transpires both in and out of New York City, and where the impact is also felt both in and out of New York City. She was employed by a company located within the geographical boundaries of the five boroughs, the decision to terminate was made from within New York City and plaintiff's paychecks are issued from within New York City. That is a different circumstance than presented in Wahlstrom, and we would like to offer the Court of Appeals the opportunity to decide whether they agree.

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A. Legislative Intent.

The legislative intent behind the NYCHRL is to root-out and eliminate discriminatory conduct. Ingalls v. Town of Lyndon, 486 N.Y.S.2d 659, 660 (Sup. Ct. 1985). The Court of Appeals has held written that, "There are many general statements in the legislative history indicating that the private right of action provision, adopted to keep the City at the forefront of human rights protection, should be liberally construed." McGrath v. Toys "R" Us, Inc., 3 N.Y.3d 421, 432-33 (2004), citing Report of Legal Div., Comm. on Gen. Welfare, at 12-13, Local Law Bill Jacket, Local Law No. 39 [1991] of City of New York.

Under the Appellate Division's Order, an employer located within the geographical boundaries of New York City can simply circumvent the NYCHRL by shuttling an employee out of the five boroughs for lunch, firing him or her during the lunch hour and then immediately return to New York City. This would be so notwithstanding that the employer was an entity domiciled within New York City, that the employee worked within New York City at the company and that the discriminatory decision to terminate was made within the boundaries of New York City.
Such a holding violates the legislative intent behind the NYCHRL that it be construed liberally and with the intent to root-out and terminate discriminatory conduct. Id. Plaintiff XXXX respectfully seeks leave to present this issue to the Court of Appeals for review. This review would benefit all of New York City in that the ruling will clarify for all employees who work in New York City but have to leave the City's geographical boundaries on occasion what their rights and entitlements are under the NYCHRL.

II. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER THE SUPREME COURT HAS THE DISCRETION TO EXTEND THE TIME LIMITATIONS IMPOSED BY CPLR 902

A. Discretion to Extend the Time.

This court held that the Supreme Court does not have the discretion to extend the time limitations set forth in CPLR 902 under the five-day rule codified at CPLR 2103(b)(2). In making this decision, the court relied upon Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2103:3, at 738, which provides that the five-day extension "has no application … to the time limits for responding to service of process". Id. The court also relied upon the Court of Appeals' decision in O'Hara v. Del Bello, 47 N.Y.2d 363 (1979).

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The Supreme Court has the authority to grant an extension of the time limitations set forth in CPLR 902. In the principle appeal of Meraner v. Albany Medical Center, 605 N.Y.S.2d 442, 444 (App. Div. 3rd Dept. 1993), appeal after remand, 621 N.Y.S.2d 208 (App. Div. 3rd Dept. 1995), leave to appeal dismissed, 85 N.Y.2d 968, 629 N.Y.S.2d 726 (1995), which the Appellate Division has cited as being adverse to the plaintiffs' position, the Third Department held that "plaintiffs are entitled to discovery to adduce evidence to meet their burden of showing that the statutory prerequisites for certification of a class are met". Id., 605 N.Y.S.2d at 209-10, citing Chimenti vs. American Express Co., 467 N.Y.S.2d 357 (App. Div. 1st Dept. 1983). The court granted the plaintiff an extension of time to file for class certification.

In the Meraner appeal after remand, the Third Department disallowed a second extension of time for the plaintiffs to move for class certification. The court denied a second extension because the plaintiffs ignored the court's directive setting forth new time limitations within which the motion was required to be filed. Meraner, supra, 605 N.Y.S.2d at 444 ("[I]f plaintiffs believed that defendants' responses did not provide them with sufficient information to support a motion for class certification, their remedy was to move for an extension of time rather than to ignore this court's directive"). Thereafter, the Court of Appeals dismissed the interlocutory appeal. Id., 85 N.Y.2d 968.

Based upon Meraner, the Appellate Division held in this case that the Supreme Court lacks the discretion to grant an extension of time under CPLR 902. The court wrote, "The filing deadline is mandatory." Slip Op. at Pg. 7; XXXX v. XXXX Systems, Inc., 2005 WL 3547036, *2 (App. Div. 1st Dept. 2005). Under Meraner, however, such exercises of discretion are permitted. The word "mandatory" does not appear anywhere in Meraner. There are even caselaws holding that the time limitations of CPLR § 902 may be tolled when necessary. See, e.g., Caesar v. Chemical Bank, 460 N.Y.S.2d 235, 237 (N.Y. Sup. 1983).

In addition, the O'Hara Court did not hold that the Supreme Court lacks the discretion under any circumstances to extend the time limitations for moving for class certification. The word "discretion" is only used one time in that case in a way that is out-of-context. That case only held that the plaintiff, under the circumstances presented there, court not return to the trial court on remand and file a second motion for class certification. Id. at 369. That case had nothing to do with the circumstances presented here, viz. whether the Supreme Court may authorize a party to withdrawal their motion in the court's discretion and allow re-filing after additional discovery. Such an exercise of discretion was permitted in Meraner, supra, which was decided years after O'Hara. The Appellate Division continued, post O'Hara, to allow such extensions of time.

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Plaintiffs also refer the court to CPLR § 2004. This statute authorizes the Supreme Court to extend the time limitations imposed by CPLR § 902.

Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.

CPLR § 2004 (Emp. Supp.).

This statute could not be clearer: The Supreme Court has the explicit authority to extend the time limitations set forth in "any statute" even if the motion is not made until "after the expiration of the time fixed". Id. This statute has been employed in a wide variety of situations to consider the extension of deadlines, including strict deadlines such as those regarding the timely filing of an Affidavit of Merit in an action for professional malpractice. See Horn vs. Boyle, 699 N.Y.S.2d 572, 574 (App. Div. 3rd Dept. 1999), leave to appeal denied, 94 N.Y.2d 762 (2000). The affidavit in Horn was severely out of time and the extension was denied, but Plaintiff XXXX was, according to the court, only two days our of time for filing her papers. She was thereafter granted permission by the court withdrawal her motion and to re-file it. No deadline was set by the court for the re-filing of the motion and the defendant did not demand that one be set.

Plaintiff XXXX desires to present the issue to the Court of Appeals as to whether O'Hara should be construed to prohibit all exercises of discretion to extend the time limitations for moving for class certification, especially in light of Meraner and CPLR § 2004. This presents a legitimate conflict in the law concerning the construction and application of a Court of Appeals decision that will affect all motions for class certification in the future. Plaintiffs' request should be granted.

B. Five-Day Mail Rule.

Likewise, the mail rule has been applied in a broad spectrum of different situations. While the court has held that the five-day rule is inapplicable to extend the time limitations for service of process, "service of process" does not include the filing of motions. Plaintiff XXXX submits that that term would only apply in the context of service of principle pleadings such as Complaints, Answers, Counterclaims and the like. There is no published caselaw stating that the five-day rule is inapplicable to extend the time limitations for filing a motion.

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Here, service of process of the complaint was served upon defendant on June 25, 2002. Defendant's Answer was due thirty days later on July 25, 2002, and defendant mailed it for filing the day before on July 24, 2002. (A.56) Plaintiffs' motion for class certification was submitted on September 27, 2002. Slip Op., Pg. 7. (A.57-58.) On January 8, 2003, the court granted plaintiffs "permission to withdraw" their motion "and resubmit another as soon as is reaXXXXbly possible." (CA 384.) Plaintiffs withdrew their motion, but they did it with permission of the court and they resubmitted it on May 13, 2003.

Plaintiffs contend that the sixty-day period prescribed by CPLR 902 does not begin to "run" until a responsive pleading has been filed, and the Supreme Court has the authority in the interest of justice to extend that time limitation under CPLR 2103(b)(2) or otherwise. See CPLR § 2004. The court has held, however, that the sixty-day period prescribed by CPLR 902 begins to run at the time that a responsive pleading is due, rather than at the time that it is actually filed. Slip Op., Pg. 8. Plaintiffs request leave to present these questions to the Court of Appeals.

C. Lack of Prejudice.

Whether the adversary will be prejudiced is always a relevant consideration when determining whether to extend a time limitation. See, e.g., Mead v. Singleman, ____ N.Y.S.2d ____, 2005 WL 3543706 (App. Div. 3rd Dept. 2005). "The interest of justice standard is broader and permits the court to consider many factors, including the meritorious nature of the action, the expiration of the statute of limitations, the length of delay in service, plaintiff's diligence, promptness of plaintiff's request for an extension of time and prejudice to defendant." Id. at *2, citing Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-06 (2000) (extension of time for effectuating service of process). See also de Vries v. Metropolitan Transit Authority, 783 N.Y.S.2d 540, 542 (App. Div. 1st Dept. 2004), and Turner v. Caesar, 768 N.Y.S.2d 679, 680 (App. Div. 3rd Dept. 2003).

Defendant's case would not be prejudiced by any means if plaintiffs were granted an extension of time for moving for class certification. There would be no issues of spoliation of evidence due to the short lapse of time or something similar. Defendant would have suffered no harm by the extension being permitted, whereas the plaintiffs and their respective classes have suffered significantly by being denied class certification.

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D. Errs of Counsel.

Plaintiffs were represented by counsel during the Supreme Court proceedings. They hired counsel explicitly for purposes of litigating two distinct class action lawsuits. According to this court's Order, plaintiff's counsel prejudiced their case by failing to timely file a motion for class certification. The plaintiff classes should not be prejudiced for the errs of counsel. Betty v. City of New York, 784 N.Y.S.2d 621 (App. Div. 2nd Dept. 2004) (extension of time granted where counsel misunderstood a conference order); Czaban v. Czaban, ____ N.Y.S.2d ____, 2005 WL 3434430 (App. Div. 2nd Dept. 2005) (reversal of order dismissing plaintiff's petition when her counsel failed to appear in court); Smith v. Mousa, 759 N.Y.S.2d 482 (App. Div. 1st Dept. 2003) (reversal of order that denied defendant's motion for an extension of time to secure an expert evaluation because no prejudice had been suffered and the movant moved promptly to rectify the situation); and, MCK Bldg. Associates, Inc. v. St. Lawrence University, 759 N.Y.S.2d 309, 310-11 (Sup. Ct. 2003) (extension granted due to law office's oversight).

The plaintiff's counsel had grounds to move before the default date for an extension of time to serve a note of issue and failed to do so, allowing the case to be marked dismissed. The ground for failure to move in a timely fashion was the plaintiff's counsel's ignorance of the legal effect of the compliance conference order-an excuse akin to law office failure ( see Meyerson v. John A. Lynch, Inc., 29 A.D.2d 761, 287 N.Y.S.2d 475; Gallo v. Bosco, 13 A.D.2d 982, 216 N.Y.S.2d 501). In view of the policy of deciding cases on their merits and the lack of prejudice to the defendants, we find that it was an improvident exercise of discretion to deny vacatur of the default.
Id. at 623.

E. Defendant's Consent to Extension.

Defendant agreed to extend the time limitations set forth in a briefing schedule relevant to the motion for class certification. Defendant should not be permitted to voluntarily submit to an extension of time, and then be permitted to use that consensual time period as grounds for combating the eventual motion. Such practice make a mockery of the court and the litigants.

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In addition, it is well-established that a party may not appeal any issues that he or she consents or stipulates to. "No appeal lies from an order entered on the consent of the parties". Ras v. Rupp, 743 N.Y.S.2d 760 (App. Div. 4th Dept. 2002), and cases cited therein. Defendant consented to the extension of time, thus it should go without saying that defendant thereby waived the timeliness argument on appeal. Plaintiff XXXX seeks leave to present this question to the Court of Appeals.

F. Spoliation of Evidence.

Summary judgment should not have been granted to the defendant because there was proof that it destroyed evidence. It destroyed e-mail archives, an employee utilization database, financial records and minutes of manager meetings. Defendant also deliberately created training reports in response to a court order; a list of programmers and systems administrators along with the salary, job title and start date information presented on that list; and, a complete list of its programmers and systems administrators.

An available sanction to remediate the spoliation of evidence is to bar the offending party from presenting evidence at trial. Madison Ave. Caviarteria v. Hartford Steam Boiler Inspection & Ins. Co., 770 N.Y.S.2d 724, 725-26 (App. Div. 2nd Dept. 2003); Bertram v. SV Danco Corp., 751 N.Y.S.2d 815, 816 (App. Div. 4th Dept. 2002); Boyle v. City of New York, 738 N.Y.S.2d 324, 325 (App. Div. 1st Dept. 2002). If they could have been barred from presenting evidence at trial, there is no reason why they should not be barred from presenting evidence during a motion for summary judgment.

III. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER HER CLAIMS FOR IMPLIED CONTRACT SHOULD BE DISMISSED

A. Collateral Estoppel.

The court dismissed Plaintiff XXXX's claims for breach of implied contract because it found that she was an at-will employee. Defendant has made an identical motion while Plaintiff XXXX's federal action was pending. Her claim for implied contract was allowed to proceed by both the District Court and the Second Circuit Court of Appeals.

That argument should have been barred as per the doctrine of collateral estoppel. "The equitable doctrine of collateral estoppel is 'intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it.'" In re Will of Bronner, 9 Misc.3d 1118(A), 2005 WL 2623630, *3 (N.Y. Sur. 2005), quoting Kaufman v. Lilly & Co., 65 N.Y.2d. 449, 455 (1985).
Plaintiff XXXX requests leave to present this issue to the Court of Appeals.

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B. Violation of Public Policy.

 

Her complaint, taken as a whole, alleges that her class has been discriminated against on the basis of their status as American citizens. Her complaint makes these express and implied allegations irrespective of the NYCHRL claims. This implies a violation of a plethora of New York constitutional provisions, statutes and decisional laws. See, e.g., New York State Constitution at Art. 1, § 11. This constitutional provision provides that, "No person shall be denied the equal protection of the laws of this state or any subdivision thereof …". Id.

The court is also referred to Sundram v. City of Niagara Falls, 357 N.Y.S.2d 943 (Sup. Ct. 1974), aff'd, 356 N.Y.S.2d 1023 (App. Div. 4th Dept. 1974), in further support of this argument. There, it was held that an ordinance that denied issuance of taxicab driver's license to any person who was not a citizen of the United States violated the right to equal protection. The plaintiff was a permanent resident alien who was 19 years of age and who had been a permanent resident alien for seven years. That is hardly distinguishable from the facts of this case.
Hence, Plaintiff XXXX respectfully requests that she be permitted to present to the Court of Appeals the question of whether New York State Constitution, Art. 1, § 11, and Sundram, supra, are sufficient to support her claim that her termination violated her right to be free from discrimination on the basis of citizenship as supported by the public policy of the State of New York.

C. Issue of At-Will Employment.

"For an employee to successfully allege breach of contract based on an employee handbook, he must demonstrate '(1) an express written policy limiting [the employer's] right of discharge, and (2) detrimental reliance by the employee upon that policy.'" Howard v. Sears, Roebuck and Co., 784 N.Y.S.2d 920, 2004 WL 503515 , *3 (N.Y. Sup. 2004) (citations omitted). "Plaintiff XXXX must show that she was not an at-will employee to overcome dismissal of her claims for breach of implied contract. Slip Op., Pg. 9. The court found that plaintiff was not able to definitively prove that a contract existed between the parties.

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57. It is understood that employees will be provided with work in line with their level of skill and will be provided with sufficient training to facilitate maintenance of skill levels in the face of XXXXging technology in all employment relationships in the information technology industry. It is understood that for the mutual benefit of the employer and employee, all computer programmers must be kept abreast of the major XXXXges in their industry on an ongoing basis. Training to maintain skill levels required to keep pace with the increasing sophistication of programs as they or improvements in them become available is an understood and necessary term of all employment contracts in the computer software industry.

58. An understood privilege of employment is the gaining of experience suitable for maintaining an employee's employability in the market.

(A.42.)

Plaintiff XXXX respectfully requests that she be permitted to present this question to the Court of Appeals.

IV. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WAS PREMATURE IN THAT MATERIAL DISCOVERY WAS STILL BEING EXXXXXGED

"Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just." CPLR 3212(f). " Summary judgment should be denied as premature where … the party opposing the motion has not had an adequate opportunity to conduct discovery into issues within the knowledge of the moving party." Colombini v. Westchester County Healthcare Corp., ____ N.Y.S.2d ____, 2005 WL 3543186, *2 (App. Div. 2nd Dept. 2005).

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"A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence." Bailey vs. N.Y.C. Transit Authority, 704 N.Y.S.2d 582, 583 (App. Div. 1st Dept. 2000). Here, no depositions have been conducted as of yet and although defendant's have already provided over 5,500 pages of documentary discovery, the materials are incomplete and do not allow for any conclusions to be drawn.

Plaintiffs retained one Dr. Harriet XXXX to analyze the data produced by defendants. Dr. XXXX wrote under oath, "I have … very serious concerns about the completeness and accuracy of the data provided in this case." (C.A.-114) The data productions are "seriously incomplete". (C.A.-119, C.A.-126) Dr. XXXX concluded as follows with regard to the need for additional discovery:

A proper analysis of the compensation charge also requires completed and accurate information on objective, productivity factors: amount of time of formal schooling; all diplomas, licenses and certificates obtained; amount and type of experience prior to first hire at XXXX and tenure at XXXX prior to starting at the company's New York offices. However, there are serious gaps in the education, experience and tenure data provided to us thus far. Additionally, I am informed that XXXX provides a good deal of formal (as well as on-the-job) training to their employees. We require this information as well, not only for the compensation analysis but also to test another of the charges in this case: that Americans were discriminated against with respect to training opportunities. Finally, we require any performance-evaluation data that XXXX maintains either in employee files or on computer.

(C.A.-120)

Based upon the information provided by XXXX at that time, however, Dr. XXXX concluded that there was evidence to support Plaintiff XXXX's claims.

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Cautioning the reader … not to draw any firm conclusions from these results, I would summarize them as follows: controlling for education, prior relevant experience and job title at hire, we find that resident workers at XXXX were paid substantially less at hire than non-resident workers were. Additionally our labor-market comparisons - although preliminary - are consistent with the charge that both groups (residents and non-residents) had lower average salaries at XXXX than those earned by their labor-market peers at other firms in the New York area.

(C.A.-126.)

The facts of the case at bar are analogous to those presented in Yerushalmi & Associates, LLP v. Westland Overseas Corp., 803 N.Y.S.2d 620 (App. Div. 2nd Dept. 2005). In Yerushalmi, "the defendants' motion was made before discovery was complete and many of the essential issues of fact in th[e] case [were] within the knowledge of individuals who had not yet been deposed." Id. at 621. "Hence," the Second Department held, "summary judgment was premature." Id.

V. PLAINTIFF XXXX SHOULD BE GRANTED LEAVE TO APPEAL TO THE COURT OF APPEALS THE ISSUE OF WHETHER THERE WERE DISPUTED MATERIAL FACTS IN ISSUE THAT PRECLUDED SUMMARY JUDGMENT

A disputed material fact exists as to whether Plaintiff XXXX was a Systems Administrator, such as Mr. XXXX, or, as the defendant claims, whether he was a "Junior Systems Administrator" and Mr. XXXX was his supervisor. That disputed fact must be resolved before the next inquiry may be considered, viz. whether Plaintiff XXXX was discriminated against on the basis of his citizenship or lack thereof by being paid less than persons of other citizenships who held the same qualifications and job assignments. There is a disputed fact regarding what position he held.

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As set forth in Plaintiff XXXX's appellate brief, defendant's own representatives cannot agree on what Plaintiff XXXX's job title was. In the affidavit of XXXX CEO, Craig XXXX, dated April 16, 2003 (A. 186 at 3) and re-submitted by XXXX for its appeal, XXXX states that "…Mr. XXXX was employed by XXXX as a systems administrator…" In the affidavit of Linda Chui, HR Specialist, of the same date April 16, 2003 (A. 164 at 7) and re-submitted by XXXX for its appeal, Chui states "Kai XXXX was employed as a Junior Systems Administrator…" Plaintiff XXXX worked alongside XXXX, often training and assisting XXXX, and alongside other XXXX programmers. His comparators must therefore be other employees performing duties similar to those performed by a Systems Administrator. (A. 193-194 at 19-23, A. 195 at 27, A. 196 at 30, A. 197-198 at 34-39.)

The discrepancies in the testimony provided by defendant's representatives justifies additional time to exXXXXge discovery or otherwise a preclusion of summary judgment altogether. Becovic v. Scoria & Diana Associates, Inc., 783 N.Y.S.2d 831 (App. Div. 2nd Dept. 2004) (material inconsistencies render summary judgment premature); Carvajal v. Madison, 747 N.Y.S.2d 93, 95 (App. Div. 1st Dept. 2002) (same); Carter v. Rosa Rosa, Inc.,
725 N.Y.S.2d 202 (App. Div. 1st Dept. 2001) (same). Our Appellate Courts have not hesitated to reverse an Order of summary judgment when it was entered before all material discovery has been exXXXXged. See, e.g., Clark v. Great Atlantic & Pacific Tea Co., Inc., ____ N.Y.S.2d ____, 2005 WL 3118177, *1 (App. Div. 2nd Dept. 2005).

Failing to allow a party adequate time for discovery will constitute a violation of procedural due process. See Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 393 (1938) (federal constitution grants at a minimum the right to notice, a fair hearing and an opportunity to be heard).

Significant issues of credibility are presented by this case. "[C]redibility issues can only be resolved by a jury". Feinberg v. Feit, ____ N.Y.S.2d ____, 2005 WL 3118062, *2 (App. Div. 2nd Dept. 2005). See also D'Amico v. Allstate Ins. Co., 599 N.Y.S.2d 296 (App. Div. 2nd Dept. 1993); Beechey v. De Sorbo, 383 N.Y.S.2d 925, 926 (App. Div. 3rd Dept. 1976) ("The credibility of witnesses and the weight to be given to their testimony are questions for the triers of the facts exclusively"). This is especially so since Plaintiff XXXX's brief at page 43 sets forth an extensive graph showing that defendant gives a great deal of its employees multiple job titles. That raises an issue of credibility regarding whether defendant is being forthright and truthful regarding Plaintiff XXXX's true job title.

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The Supreme Court decided that Plaintiff XXXX's credibility was not lacking for any specific reason, and therefore the issue should be submitted to a jury for determination. The Supreme Court's holdings regarding credibility should not be disturbed and reconsidered on appeal. RSI Roofing, Inc. v. Hartnett, 576 N.Y.S.2d 645, 646 (App. Div. 3rd Dept. 1991) ("Petitioner's primary challenge is to the credibility of the witnesses who testified against it, an issue beyond our review"), citing Matter of Naftilos Painting and Sandblasting v. Hartnett, 569 N.Y.S.2d 474, 476 (App. Div. 3rd Dept. 1991).

In Mannino v. J.A. Jones Const. Group, LLC, 792 N.Y.S.2d 32 (App. Div. 1st Dept. 2005), the court held that a claimant's workers' compensation claims were not barred notwithstanding that the only proof that the accident happened the way the claimant said it did was his own testimony, since there was no evidence that he lacked credibility. Id. at 33. Likewise, there is no evidence in the case at bar that Plaintiff XXXX lacks credibility for any reason. Why should the defendant employer's self-serving statement that Plaintiff XXXX's job position was Junior Systems Administrator be believed over Plaintiff XXXX's asseverations that his job title was Systems Administrator? This requires a determination of credibility, and only such determinations may be made by the jury. Id.

Plaintiff XXXX seeks to present this question to the New York Court of Appeals for review for determination as to whether a remand is necessary.

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CONCLUSION

In conclusion, the court should grant the plaintiffs leave to appeal to the Court of Appeals the issues set forth above.

LAW OFFICES OF XXXXXXXXXXXXXXXXXXXX, LLP

____________________________
Kenneth XXXXXXXXXXXXX, Esq.
XXXXXXXXXX Street, XXth Floor
New York, New York XXXX
Attorney for Plaintiffs

Dated: