A judge has ordered attorney Howard Fensterman of Lake Success to be deposed about whether a chauffeur who is suing in Brooklyn Civil Court for wrongful termination worked for him personally or for his law firm.
Brooklyn Civil Court Judge Katherine Levine (See Profile) said she does not have enough information about Vincent Jackson’s employment arrangement to decide on a motion by Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf for summary judgment to dismiss Jackson’s suit.
Levine wrote in Jackson v. Abrams, Fensterman, Fensterman, Flowers, Greenberg & Eisman, 025321/10, that she must hear Fensterman’s side of the story to decide whether Jackson’s firing violated the federal Family Medical and Leave Act (FMLA), the state Human Rights Law and the New York City Human Rights Law, as the former driver is asserting.
If it is decided that Jackson worked for Fensterman personally, neither the FMLA nor the city or state human rights laws would apply to their employment relationship, the judge said.
Neither the city nor state laws cover private employment relationships where “domestic services in the title of personal chauffeur or housekeeper are rendered,” Levine wrote.
If Jackson is deemed to have worked for the firm, on the other hand, his wrongful termination claims could have validity under all three statutes, the judge said.
Under the FMLA, qualifying employees are allowed to take up to 12 weeks of unpaid leave for a medical emergency and be guaranteed to get their job back or a position with comparable pay or benefits upon their return.
The Fensterman firm employs more than 50 attorneys in offices in Lake Success, Manhattan, Brooklyn and Rochester.
Fensterman, the managing partner of the firm, is represented by Frank Seddio and Sharon Stiller of Abrams, Fensterman.
In addition to deposing Fensterman, Levine said Jackson’s attorney, David Wims of Brooklyn, should have access to other firm employees.
Jackson claims he was fired in October 2009 after two years with Fensterman in violation of federal, state and city law as he was hospitalized for the insertion of a stent for a heart condition.
The firm argues that he voluntarily left his job.
Wims tried to depose Fensterman but his counsel resisted, arguing the firm was in “the process of preparing a summary judgment motion which would ‘obviate the necessity of additional depositions.’”
Levine said that in Jackson’s own deposition, he said he was hired by Howard Fensterman, that his working hours were dictated by Fensterman and that he was responsible only to Fensterman.
But the judge said Jackson also submitted a “plethora” of documents suggesting a different employment relationship and raising questions which warrant Fensterman’s deposition.
They include W2 wage and tax statements listing Jackson as an employee of the Abrams, Fensterman firm; documentation that Jackson was enrolled in the firm’s health insurance plan and an unsigned letter dated Aug. 27, 2007, which said Jackson would be paid $375 a week plus medical coverage by Abrams, Fensterman and $200 a week by Fensterman personally, according to Levine’s ruling.
The documents suggest that the Abrams, Fensterman firm had the “direction” and “control” of Jackson that is present in an employer-employee relationships as defined under federal and state court cases, Levine ruled.
Wims said he welcomed Levine’s decision, though it did not result in dismissal of the summary judgment motion. He contended that it was “disingenuous” for Abrams, Fensterman to claim the firm did not employ Jackson once it faced a suit for his wrongful termination, and to refuse to produce Howard Fensterman for a deposition.
“For people who litigate cases, there are certain concepts that are fundamental,” Wims said Wednesday in an interview. “One is the exchange of information. For the defendant to refuse to appear at a deposition and not give us information, that is outrageous.”
Abrams, Fensterman focuses on representing health care providers as well as litigants in family law, elder law and personal injury litigation.