Goldman v Frederick Goldman, Inc.

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Goldman v Frederick Goldman, Inc. 2012 NY Slip Op 31266(U) May 8, 2012 Sup Ct, New York County Docket Number: 602827/03 Judge: Marcy S. Friedman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 511512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: MARCY S. FRIEDMAN a*J PART Justice Index Number : 602827/2003 INDEX NO. GOLDMAN, MICHAEL MOTION DATE VB MOTION SEQ NO. FREDERICK GOLDMAN, INC. Sequence Number : 012 - SUMMARY JUDGMENT The followlng papsm, nurnbsmd 1 to Notlce of MotlonlOrder to Show Cause Answering Aftldavltm h 9 ,wera rbad on thls motlon toHor -Affldavlta - Exhlbltn lids)..L!&- IW s ) . IW s ) . - Exhlblta Replylng Affldavlb mh-w&dGL * Upon the foregoing papem, It Is ordemd that thls motlon Is A - 2I t L ! +d& 0m:x FILED NEW YORK COUNTY CLERK'S OFFICE ..................................................................... 0 CASE DISPOSED r]DENIED 2. CHECK AS APPROPRIATE: ........................... .MOTION IS: c GRANTED ] 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ S E n L E ORDER 0DO NOT POST 0GRANTED IN PART 0SUBMIT ORDER FlDUCl ARY APPOINTMENT OTHER REFERENCE ' [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOFK - PART 57 PRESENT: Hpn. Marcy S. Friedman, JSC X MICHAEL GOLDMAN, Index No.: 602827/03 PlaintvJ - against - DECISION/ORDER FREDERICK GOLDMAN, INC., JONATHAN GOLDMAN, individually and RICHARD GOLDMAN, individually, Defendants. FILED X NEW YORK COUNTY CLERKS OFFICE \ In this action, plaintiff Michael Goldman alleges that he was unlawfully demoted and then terminated from his employment with defendant Frederick Goldman, Inc. (FGI) by FGI and its principals Jonathan Goldman and Richard Goldman individually. Plaintiff, who was 62 at the time of hls termination, claims age discrimination. He also alleges that defendants breached his employment agreement by failing to pay him contracted for bonuses and vacation pay. Plaintiff - further alleges a claim in quantum meruit for the value of services for which he was allegedly not compensated. Defendants assert counterclaims for fraud, misrepresentation, breach of fiduciary duty, and conversion, alleging that during his tenure as Vice President of Finance and Chief Financial Officer, plaintiff, who had control of the company s financial books and records, improperly appropriated $875,000 in unauthorized advances. Plaintiff moves for summary judgment on all of his claims and striking defendants answer, affirmative defenses, and counterclaims. 1 \ [* 3] The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action sufficiently to warrant the court as a matter of law in directing judgment. (CPLR 3212[b]; Zuckemm v City of New York, 49 NY2d 557, 562 [1980].) Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winemad v New York Univ. Med. Ctr., 64 NY2d 851,853 [ 19851). In order to establish a claim of discrimination under both the City and State Human Rights Laws (NYC Admin. Code 5 8-107[1][a] and NY Exec. Law $296, respectively), the plaintiff must show a connection between his membership in a protected class and the adverse employment action taken against him. (Bene# v Health Mgt, SYs,. Inc., 92 AD3d 29,35 [ 16t Dept 201 11, lv denied 2012 NY Slip Op 71298.) The deterpination of whether the plaintiff has met his burden requires a three step analysis in which the plaintiff must initially establish a prima facie case of discrimination. The burden then shifts to the defendant to rebut the plaintiffs prima facie case with a legitimate reason for the firing, The burden then returns to the plaintiff to demonstrate that the proffered reason is pretextual. (Stephenson v Hotel Empl. and Rest. Empl, Union Local 100 of the AFL-CIO, 6 NY3d 265,270-71 [2006] [applying three step burden shifting approach articulated under Title VI1 in McDonnell Dou~las Greea, 41 1 US 792,793, v to State Human Rights law claim of discrimination]; Bennett, 92 AD3d at 36 [holding that burden ~ , cautioning that it must be applied in a shifting approach of McDonnell Douglas is S O U I Ibut ~ ~ way so as to effectuate the broad remedial purpose of the City Human Rights Law].) Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiffl]. (Stephenson, 6 NY3d at 271.) 2 [* 4] In support of his motion for ultimate relief, plaintiff provides a brief affidavit of merit accompanied by hundreds of pages of transcripts of the depositions of the individual parties and a memorandum of law. Plaintiff fails, however, to cite evidence in the record that supports his claim of discrimination. Plaintiffs affidavit merely asserts that defendant Jonathan Goldman questioned him about when his was going to retire, stated that he wanted fresh blood at the f r , made other age centric remarks to plaintiff. (P. s Aff. Ln Support, 7 6.) i m and Even assuming arguendo that this conclusory affidavit is sufficient to shift the burden to defendants to show a legitimate reason for plaintiffs termination, defendants opposition papers raise a triable issue of fact in this regard. Defendants cite their deposition testimony that they did not ask plaintiff if he was going to retire (Jonathan Goldman Dep. at 70-7 1); that age was not a factor in their termination decision (Richard Goldman Dep. at 119); and that they had numerous reasons for that decision, including plaintiffs untimely financial reporting, insubordination, and inability to get along with defendants. (Id.at 19-22; Jonathan Goldman Dep. at 63-64,69-70.) Plaintiff does not make any showing in reply that these reasons were pretextual. With respect to plaintiffs claims for breach of contract, his sweeping and conclusory statement that he was entitled to supplemental compensation of $973,880 (P. s Memo. at 1l), is unconvincingly bolstered with allegations concerning loans allegedly taken by the individual defendants over the years (id.at 12), and the additional statement that defendants were aware of and received statements reflecting plaintiffs appropriation of additional compensation. (Id.at 1213.) Defendants assert, on the contrary, that plaintiff committed fraud, stealing $875,000 from FGI over a two year period. They emphasize that at numerous points in his deposition, plaintiff admitted chat he had caused funds to be advanced to him without any prior authorization from the principals of FGI. (R. Goldman Aff. in Opp., 124.) 3 [* 5] f Plaintiffs final contention, that defendants counterclaim for fraud should be dismissed, is premised upon the erroneous assertion that the pleading lacks specificity. In fact, the counterclaims alleging fraud, misrepresentation, and breach of fiduciary duty allege that plaintiff took unauthorized advances of $100,000 six times in 2002, directed his subordinates to make accounting entries to evade detection of the alleged overpayments, took additional sums that brought the payments to $875,000, and created false and misleading documents to hide the theft. The allegations as pleaded are sufficiently detailed and specific to permit a reasonable inference of the alleged conduct. (MBIA Ins, Corn, v Countwide Horns; Loans. Inc., 87 AD3d 287,295 [ 1 Dept 201 13, cpoting Pludeman v Northem Leasing Systems, Inc., 10 NY3d 486,492 [2008].) For the foregoing reasons, plaintiffs motion for summary judgment as to liability and for an order striking defendants answer, affirmative defenses, and counterclaims, is denied. 1 This constitutes the decision and order of this court. Dated: New York, New York May 8,2012 FILED MAY 1 5 2012 NEW YORK COUNTY CLERK S OFFICE 4

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