n.. '...,en IIIIIIIIJend 1 to

Transcription

1 0/0/0 0: DISPONZIO PAGE 0/0,"00/0l Order DIlIl!d 0)//0Q, BY JUDGE. franalls A. RIYEllA. (Pge Of SDO) PRESENT: Ben.Ito0COf) BiWtQ.., Saslte At." I~. Trl TfltIDt P'I'f!?~ tbt SuprmJr Court ofthe SbltIl ornew Yirk. Wd id ad fl»' tile COlmty of Klnp, at the COII~..ted.t C' k «AI.-,"'oup or BrtMlld,a, CltJ ud SlIfe ofnewyork,oathe /q day or March 0JO VolmQ( Conrucllon ~nc., Del'eadQt(t) CaLNo. JCf In_ NO'-j f.l;()c J0 n.. '......,en IIIIIIIIJend to Ncltice otmotian - 0nIm' Show CauK CId Atlidmtf(It.tDnDuiOM) Annc.nd~!#_J:i!'~~~J:.UOJ~~~~d:e.rn!~tlii~~ ~ Nfickvit(AffimMtian~IA:Ill~~~~~~&xll~ltid...~Jn.D..Q'!;~_~r-CIi='- kqjly AidaYit (AfIinnIdon).~~..U'.~lNlt.aJ~~_":-...:..._-'~_ A.ffida'rit (Aff~) Pbd=-'::"'"inp-.ilcb~i~""--' ~----I--~-- StipQ...-Mb""S ~ t_---- Fned.~ --- OY\-the.. '?Ctpe.:r,::, Q.()O\ ex\\io'i.:.: 0bm\\\~c.\ 0, O.hd Upon nqurly:. Of a.~ a.~,~ mfn\j iby- tle. Ye.oan..s S+a~ec\ m~i'!..~ 0uU:j on lore rec.ord ~ ~anc'(o...b\e.. f r-rq.nc..c\:::::, 'R vero.) 0. S. c, ~ On \-..toxey') \<, 0~\ a l 'U:?~l{;,.ndQ.n s 'r<\ci~\of"\ Q:.:,r S0my'nQ~f -(,joo rn~ n--t.~ dqrn e d CE-CQoiJS~. i J Vto~ 'o"'ct' a~,~d Ccxn~.'e.'(YT- euld.n~~. 0\0 S\JSa.\lj \ \;;,.s ~rdex'\ Ch -*'e.. "''\,o-ho\'"'l o,r de.,'n\c)()&\(q-hr:~ 0 \~ma\~ I r'cx\. d'l~ y\m \\'lc.d()~ Forae,...ably 0 MG-v MD-b. M'Ikm"'c OD? reo~ \{cor ~~(l\\r~ws-c\"'ri,()c..jn 0;'0 lion. FRANCOIS A. btiftm.. ; J.B.c.' --...~,

2 0/0/0 0: DISPONZIO PAGE 0/0!orn/f;IJ, O~r OlIt,!d 0/!/0, If( JUDGE. frl\l'lcois A. luvem. (!'age ~ Of OQ) 0'G \oiv ",,' ' l,t' 'r..,! I.. :' GZ~'-' '\~ y' \. ihoci:,; S~':H\':;i,~(,';i l'~ " _.'\\ ~ O~ \,,.

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS CIVIL TERM: PART X EUGENE GRAY, -against- PLAINTIFF, INDEX # 0/00 Motion 0 VOLMAR CONSTRUCTION, DEFENDANT X Supreme Courthouse 0 Adams Street Brooklyn, New York 0 March, 0 B E FOR E: A P PEA RAN C E S: THE HONORABLE FRANCOIS RIVERA, Justice of the Supreme Court LAW OFFICE OF TODD J. KROUNER Attorneys for the Plaintiff Bedford Road Pleasantville, New York 0 BY: TODD J. KROUNER, ESQ. and BY: DIANA M. CARLINO, ESQ. GEORGOULIS & ASSOCIATES, PLLC. Attorneys for the Defendant Broadway New York, New York 00 BY: MICHAEL McDERMOTT, ESQ. SUSAN K. WRIGHT Senior Court Reporter

4 THE CLERK: Number nineteen on the motion calendar, Eugene Gray versus Volmar Construction, Inc. COURT OFFICER: Counselors, please state your appearances for the record. MS. CARLINO: for plaintiff. louder. Diana Carlino and Todd Krouner You have to speak a little MS. CARLINO: I'm sorry. Diana Carlino and Todd Krouner for Plaintiff Eugene Gray. MS. CARLINO: Carlino is it? Yes. Who's that? MS. CARLINO: Yes, I'm sorry. I said Todd Krouner. He has to speak for himself. MR. KROUNER: Forgive me, your Honor. Todd Krouner, Law Office of Todd J. Krouner for the plaintiff. 0 Could you spell your last name please. MR. KROUNER: K-R-O-U-N-E-R. So your plaintiff has two lawyers. Counsel?

5 Good morning, your Honor, Michael McDermott for Volmar Construction, movant. Is your name on any of these papers? Well, yes, I signed all the papers. But Georgoulis is the firm. My name is Michael McDermott. That's okay. In case I publish it, I want to put your name on it. I want to spell it right. M-C-D-E-R-M-O-T-T. It's Michael, Did you do the affirmation? Yes, all the papers. Who is the movant? 0 I am, your Honor. I'm not sure if the Court has the reply papers which would have been filed this morning by service. I do. I have a reply affirmation. Perfect. seeking and why? All right, so what are you Summary judgment, your Honor. Volmar Construction is a construction firm here in

6 Brooklyn, about medium size. on a public job in New Jersey. for discrimination. They employed plaintiff Now plaintiff is suing The story is this, your Honor: brother was working at Volmar. Plaintiffs Can stop you for one second? Certainly. So were not saying that -- mean, it's a recognized cause of action. Substantively can recognize this cause of action. You're not saying they failed to state a cause of action. You're saying he's not going to win because you can prove that you're not liable; is that correct? That's correct, your Honor. So, one, he works for you. Or did work. And two, he doesn't work anymore. That's correct. Was that your idea or his? 0 Volmar's idea, your Honor. termination? And there's a basis for his Lack of work. m sorry? Lack of work. He was laid

7 off. And did you see their opposition? Yes. Does Mr. Gray have a different reason for being laid off that he's swearing to? He claims he was discriminated against for two reasons. He's black. And his last day of work was May, 00. He had an accident. He took off about three weeks. But by that time, the project was winding down and - So what is your nondiscriminatory basis for discharging him that somebody's swearing to? There's two reasons. The project was winding down. This was the Newark Penn Station New Jersey public job there, train station. the project was winding down and Mr. Gray was a So construction laborer. So they just needed fewer laborers. But also at the same time, Volmar was undergoing a change in its business approach. 0 Yes. Plaintiff was a direct employee of Volmar and Volmar was the general contractor on the job. So Volmar had started employing subcontractors to perform all sorts of tasks. tasks included. Laborer

8 So there's two things. The project is winding down, but Volmar is also evolving into, strictly speaking, a general contractor, so they hired other firms which would do labor work which would do all types of work, masonry work. into a more - Volmar was evolving Let me cut to the chase. Sure. Who is swearing to why he was fired? Mr. Marinakis. That's in the affirmation of to why he was fired? Is that the person who's swearing Yes. Now, let's go to paragraph number five. What does he say? There he says he does not 0 specifically remember the decision to hire or fire plaintiff. So your sworn allegation of fact for the reasons for firing him is, I don't remember. And that's explained in the testimony. I don't need an explanation

9 because that's self-explanatory. So does that mean that whatever the reason is for his firing you don't recall? Your Honor, there's deposition testimony by Mr. Marinakis, it's not a So help me with this. Does his deposition testimony refresh his recollection as to why he fired the plaintiff? No, but he - Is anybody else swearing to why the plaintiff was fired? It's in the testimony of Mr. Demetrius Lykas. how In his deposition, he describes What about his affidavit? What does he have to say about why plaintiff was fired? Mr. Lykas had no role. Mr. Lykas is a project superintendent. So he knows from nothing as to 0 why he was fired. Yes? No? He knows that he was - Yes? No? He knows. He knows that he was on the project. So take me to the paragraph that s~

10 gives his explanation as to why the plaintiff was fired. your Honor. That's not in the affidavit, So what is it that you have that's sworn from anybody as to why the plaintiff was fired? transcript of Mr. Lykas. It's in the deposition to find the page? You want me to hunt or you want I'll find you the - "I don't remember"? Is it going to be something like No, your Honor. On page ten. So do I have it basically if you -- if you're telling me, if I understand you correctly, and I don't mean to be difficult because 0 this is actually kind of simple. his deposition you're going to? Mr. Marinakis, it's At this point, no. Mr. Lykas' testimony. But we can go to Mr. Marinakis as well. Mr. Marinakis is the owner of the company. Here's what you're going to do. I'm going to call your case back in a moment and when

11 we come back you're going to be able to take me either page or line or somewhere in someone's affidavit for anybody who can swear to me why this person was fired. your Honor. I have that information here, Okay, so I've already seen what you've shown me. So now take me to whatever page you want me to look at. affirmation. Page ten of the reply Reply affidavit? Affirmation. That's a little late. I want to know it in your motion. Do you need a moment to look at it? Your Honor - Do you need a moment to find it? Yes, I'll take a moment. 0 called. Sure. This case will be second Just raise your hand when you're ready and then I'll recall the case. Thank you, your Honor. MR. KROUNER: Your Honor, I'm just, as a matter of procedure, I'm on a calendar with Judge Dabiri. May I -

12 I got two lawyers here. Anyone of them could stand up on it. You want to leave your - MR. KROUNER: your Honor. wait for you? MR. KROUNER: I'd like to be heard for this, So what do you want me to do, I'm just looking for guidance. Guidance is that when the case is ready you should be here or a lawyer representing your client should be here. Which one doesn't matter. MR. KROUNER: When my adversary indicates he's ready, we'll corne next, or we're second called after everybody else? When your adversary raises his 0 hand, he's going to be called as soon as I'm ready for him. MR. KROUNER: Thank you. stay. (Whereupon, other cases were called and heard, after which this matter was recalled.) COURT OFFICER: Parties on number, step up. So we have Diana Carlino, Todd Krouner, and Mr. Michael McDermott for Volmar Construction.

13 Yes, your Honor. So where we left off is you were going to show me in your motion papers any place that I could find a sworn allegation as to the reasons plaintiff was fired. We can look at three places. The first I refer your Honor to is Exhibit which is the plaintiff's transcript. Got it. transcript. At Page of the transcript. One ninety-six of plaintiff's Volmar's motion. Which is Exhibit of Yes. He explains from lines eight to fourteen what he was told when he was laid off, that it was the lack of work, that the project was winding 0 down. We could also look at Exhibit and which are documents So this is plaintiff talking about what was told to him. return to work. Right, when he tried to

14 When he tried to return to work. If I could take a step back. terminated? So does that mean after he's No, your Honor. What happens is in May he has an injury, an accident on the site and he needs time to recover. About a month later he wants work again, but by that time the project had wound further down, it was nearing completion, as well as the additional use of subcontractors that at that point there was no position available for him. So you want me to basically read the answer, which is ten to fourteen. Exhibits and. Right, and there's also Exhibit and. Let me go to it. And what's Exhibit? That's the response to a 0 Worker's -- Worker's Compensation when the plaintiff made a claim said - Help me with this. Exhibit, is anybody explaining the document under oath? No, your Honor. Is this document signed by the plaintiff?

15 No, your Honor. to consider? What makes this admissible for me Exhibit and, it could be argued, are government records. So let's hear the argument, because otherwise they're thought to be interested. what is Exhibit? So Exhibit is the questionnaire or the document generated by the Worker's Compensation Board. When a claim was made by plaintiff, they submit the questionnaire to Volmar and Volmar has to explain why the plaintiff, you know, the situation how he left Volmar's employment and the accident. So this is an unsworn document by a party offered to Worker's Compensation Board that nobody's attesting to what it is or what it's for. Yes. 0 Okay, let's move on. Exhibit ls what? Is, I guess, Mr. Gray had some problems with child support. So a similar document was sent to Volmar seeking to garnish his paychecks. And that's the same type of document,

16 prepared by Volmar and submitted to -- I don't know the exact name, but Support - So this is an admission against Mr. Peraltas, right, because he signed it? Yes. want to use? And what's it saying that you I thought this said lack of work. I'm not seeing it. Laid off. Laid off. It says that he was laid off. Where? The box that's checked. The second -- the third line with handwriting. So the checked box said date last employed //0, on layoff, yes. before this - Right, and the documents When was he fired? 0 There was no sort of firing. service permanently? When was he separated from I guess June th I think is the date. So May th is the accident. Three weeks later, approximately.

17 So on May th when he was on - when he had an accident - He was not fired. He was recovering. Right. In fact, they said call back, call us when you're ready to return. you're recuperating. So it sounds like laid off while No, your Honor. Okay. That's the accident on May th - What else you got? The Marinakis affidavit. Let's go to that. Which one is that? That's the first affidavit. That's the one that says I don't know. 0 That's correct, your Honor. What else do you have? In paragraph seven he describes the process that Volmar had started to employ subcontractors rather than direct laborers. What else you got?

18 If we can go to the -- you want to know why he doesn't remember. explanation? That No, no. Or that seems - No, no, it's simple. It's so simple, I don't know how to put it. Which is why I gave you time. Who is swearing to a reason for the firing? Show me. That is in the Marinakis. So this is what I told you to look for and you're showing me. What else you got? Are we done? Mr. Marinakis made the decision. Is there anything else? 0 Okay, so the motion for summary judgment is denied because I have nobody telling me under oath, under oath with any personal knowledge as to why the plaintiff was fired. burden. Therefore, they cannot meet their Orally argued on record. Write the decision, please. Please also indicate Exhibit and were not admissible, not in admissible form to demonstrate

19 anything about why plaintiff was fired. You can put that plaintiff's deposition does not offer an explanation as to why he was fired either. * * * CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPTION OF THE ORIGINAL STENOGRAPHIC MINUTES TAKEN OF THIS PROCEEDING. h.ddljl K Il )LJi At SUSAN K. WRIGHT OFFICIAL COURT REPORTER 0