Plaintiff Vincent Jackson ("plaintiff" or "Jackson") brings this action seeking damages against defendant law firm Abrams, Fensterman, et al ("defendant" or "law firm") on the grounds that the law firm improperly terminated him as a chauffeur / driver after he was hospitalized to insert a stent, in violation of the Family Medical and Leave Act ("FMLA"), 29 U.S.C. §§2601 et seq; the New York State Human Rights Law ("State HRL"), NY Exec. Law §§290 et seq; and the New York City Human Rights Law ("City HRL"), NYC Admin. Code §§8-101 et seq. In its amended answer, the law firm denied liability on the grounds that it was not plaintiff's employer.

Defendant now moves for summary judgment pursuant to CPLR §3212 on the grounds that plaintiff admitted during his deposition, and in other legal documents, that he was employed by Howard Fensterman ("Fensterman") as his personal chauffeur and was not employed by the law firm. Therefore, under well settled precedent, plaintiff as a matter of law could not be covered by the FMLA, the State HRL or the City HRL. Specifically, defendant cites to plaintiff's deposition in June and July 2013 where plaintiff admitted that he was hired by Mr. Fensterman, was his personal driver and that his primary job responsibility was to pick Fensterman up at home, drive him to the office and daily appointments, and take him home. He also testified that he was not responsible for transporting anyone other than Fensterman and occasionally his family.

Plaintiff opposes the motion on the grounds that he produced documentary proof in admissible form sufficient to require a trial of material fact,' and to warrant the dismissal of the motion. Alternatively, he argues that the motion is premature pursuant to CPLR 3212(f) since further discovery is needed to resolve the issue of the identity of plaintiff's employer. He claims that since he has "little to no personal knowledge of the relevant facts relating to the identity of the employer" he should be permitted to take the depositions of defendant's principal ("Fensterman") and other employees. The motion should therefore be dismissed with leave to renew upon completion of discovery.

The record is clear that plaintiff noticed Fensterman for a deposition way before plaintiff's deposition was taken in the summer of 2013. The e-mails between counsel for the parties confirm that after plaintiff's deposition was completed, plaintiff sought to effectuate the deposition of Fensterman but that Fensterman was never produced since defendant's counsel was in the process of preparing a summary judgment motion which would "obviate the necessity of additional depositions." [*2]

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265 (1986); Gaugaix v. Laboratories Estherderm USA, et al; 2000 U.S. Dist. LEXIS 15075 (S.D.NY 2000) at p. 7. Pursuant to CPLR 3212, "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact..." Alvarez v. Prospect Hospital, 68 NY2d 320, 324, (1986); Rodriguez v Metropolitan Cable Communications, Inc., 2011 NY Slip Op 33287(U), 2011 NY Misc. LEXIS 6016 (Sup. Ct., Queens Co, 2011). Once the proponent carries this burden, the party opposing the motion assumes the "burden of producing evidence showing that there is a genuine issue of fact which must be tried ( Alvarez v. Prospect Hospital, supra) or of demonstrating that discovery is needed to successfully oppose the motion." Rodriguez, supra at p. 5

Pursuant to CPLR 3212(f), "Facts unavailable to opposing party," a court may deny a motion for summary judgment or order a continuance of such motion in order to permit "affidavits to be obtained or disclosure to be had" should it appear from affidavits submitted in opposition to the motion that "facts essential to justify opposition may exist but cannot then be stated" Therefore, "(a) party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated." Mtr. Of James v. Aircraft Serv. Intl. Group, 84 AD3d 1026 ( 2d Dept. 2010) citing Mtr. Of Fasciglone, 73 AD3d 770 ( 2d Dept. 2010). This is especially so when the party opposing the motion has not had a reasonable chance for discovery prior to the making of the motion, Aurora Loan Services, LLC v. LaMattinia, 59 AD3d 578 (2d Dept. 2009), and where there is "a basis in the record" for finding that evidence sufficient to defeat the motion exists and "the facts appear to lie within the knowledge of the opposing party." Westchester Med. Ctr v. NY Central Mut. Fire In. Co., 30 Misc 3d 497. 499 (Sup. Ct., Nass. Co. 2010). Where the affidavits submitted contain discrepancies and depositions of key witnesses have not been taken, courts will deny the motion for summary judgment with leave to renew upon the completion of discovery. Ross v. Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494, 506 (1993); Gardner v. Cason, Inc., 82 AD3d 930, 932 (2d Dept. 2010); Gruenfeld v. City of New Rochelle, 72 AD3d 1025 ( 2d Dept 2010), Aurora Loan Servs, LLC, 59 AD3d 578 ( 2d Dept 2007). However, the "mere hope" or "speculation" by the party opposing summary judgment that it will uncover evidence that will prove its case is insufficient to postpone a decision on a summary judgment motion. Casey v. Clemente, 31 AD3d 361 (2d Dept. 2006); Westchester Med. Ctr, supra, 30 Misc 3d at 499.

Here defendant correctly asserts that plaintiff admitted in his deposition that he was hired and employed by Abraham Fensterman, that his working hours and conditions of employment were dictated by Fensterman, and that he was responsible only to Fensterman. Therefore, were this Court to rely solely on the admissions plaintiff made in his deposition, summary judgment would be warranted since Fensterman, as an individual, did not employ the requisite number of [*3]employees to be covered under any of the anti discrimination statutes cited by plaintiff, Furthermore, the City and State HRLs do not cover private employment relationships where domestic services in the title of personal chauffeur or housekeeper are rendered. Mtr. Of Annex Hotel v. State Div. Human Rights, 45 AD3d 360 ( 1st Dept. 2007).

However, in his affirmation in opposition to the motion, plaintiff's attorney attached a plethora of documents which, at the bare minimum, raise a question as to the firm's involvement with plaintiff so as to warrant the deposition of its principal Fensterman. In particular, plaintiff annexed his W2 wage and tax statement listing Abrams Fensterman as his employer. He also attached a "New Member Enrollment Form" from Abrams Fensterman for plaintiff Jackson. The cover page of this form, from John Takesky to Lisa Bellino, lists Jackson as the recipient of the firm's New Member Enrollment Form . The actual form lists the effective date of enrollment as February 1, 2008 and is signed by Lorraine Takesky for the firm. After Jackson was terminated, the firm covered hin under COBRA for two and a half months until December 31, 2009, and filled out a loss of benefits coverage form. Finally, plaintiff attached a letter dated August 27, 2007, stating that as of October 1, 2007, Fensterman personally would be hiring Jackson and that the law firm would pay him $375 per week plus medical while Fensterman would pay him $200 a week The letter further states that when not working for Fensterman or his family, Jackson would be working for the firm at LT's direction. The letter is unsigned. ^[FN1]. As these documents were generated by the firm, the firm- through Fensterman- possesses knowledge of facts essential to justify opposition that cannot be obtained or explained by plaintiff.

Furthermore, these documents are quite relevant to a determination as to whether Fensterman or the firm is plaintiff's actual employer. While the State HRL does not define the term"employer," State Div. Of Human Rights (Emrich) v. GTE Corp., 109 AD2d 1082, 83 (4th Dept. 1985), the courts have created a four prong test to determine whether a defendant falls within the ambit of the Acts. The courts must consider whether the proposed employer 1) had the power of selection and engagement of the employee; 2) paid the salary or wages to the employee; 3) had the power to dismiss the employee; and 4) had the power to control the employee's conduct. Joelle c. Gaugaix v. Laboratoires Estherderm, supra (state and city HRLs are to be analyzed in accord with title VII); Gryga v. Ganzman, 991 F. Supp. 105, 111 (E.D.NY 1998); Robins v. Max Mara USA , 923 F. Supp. 460, 470(S.D.NY 1996) (control of the defendant is key issue in determining whether defendant is the plaintiff's employer); Alie v. NYNEX Corp., 158 F.R.D.239, 246 (E.D.NY 1994); State Div. Of Human Rights, v. GTE Corp., 109 AD2d 1082 (4th Dept. 1985). Cf Degen v Uniondale U.F.S.D., 2012 NY Slip Op. 30377(U); 2012 NY Misc. LEXIS 695 (Sup. Ct. Nass. Co. 2012) (summary judgment motion denied [*4]without prejudice to renewal where discovery and depositions are necessary to determine the respective parties' ability to direct and control work at job site and this information is in exclusive control of defendant).

The court therefore grants a continuance of the motion for summary judgment until after the deposition of Abraham Fensterman is taken, with leave to both parties to supplement their original papers on the motion within one month of receipt of the transcript of the deposition.

This constitutes the Decision and Order of the Court.

DATED: February 26, 2014

_____________________________

KATHERINE A. LEVINE

Acting Justice, Supreme Court