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Murphy v. ERA United Realty6/15/1998
Argued - September 15, 1997
OPINION OF THE COURT
In an action, inter alia, to recover damages for discrimination based on sex and national origin pursuant to the New York State Human Rights Law (Executive Law article 15), the defendants ERA United Realty, Petee Realty, Peter Orisses, and Nick Kavourgias appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated January 29, 1997, as denied their motion for partial summary judgment dismissing the plaintiff's first, second, third, and fifth causes of action.
ORDERED that the order is modified, on the law, by deleting the provision thereof which denied that branch of the appellants' motion which was for summary judgment dismissing the first cause of action insofar as it is asserted against the defendant Nick Kavourgias and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the respondent.
The plaintiff alleged that from September 1992 to October 1993, she was subjected to pervasive and severe sexual harassment and discrimination while working as a real estate broker at the ERA United Realty office located on Bell Boulevard in Bayside, New York. The complaint alleged, inter alia, that the plaintiff's supervisor and two male co-workers created a hostile working environment by making unwanted physical advances and crude and insulting remarks. Their sexually offensive conduct was compounded by their denigrating comments about the plaintiff's Irish ancestry and their deliberate attempts to exclude her from business opportunities.
The causes of action at issue on this appeal allege (1) unlawful discrimination in violation of Executive Law §296(1)(a) and in violation of Administrative Code of the City of New York §8-107, (2) that the defendants, inter alia, aided and abetted each other in their discriminatory conduct toward the plaintiff in violation of Executive Law §296(6), and (3) intentional infliction of emotional distress.
The Supreme Court properly determined that there were triable issues of material fact as to whether the plaintiff was an independent contractor or an employee. It has been established that Executive Law §296(1)(a) only governs discrimination in the traditional employer-employee relationship and not in the employment of independent contractors (see, Scott v Massachusetts Mut. Life Ins. Co., 86 NY2d 429). As a general rule, the determination of whether an employer-employee relationship exists rests upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results (see, Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897; see also, Matter of Sullivan Co., 289 NY 110, 112).
Although it is undisputed that the plaintiff signed an agreement stating that she was an independent contractor and the company did not withhold taxes from her commissions or provide employment benefits, the terms of the agreement required her to: (1) work at least 40 hours per week; (2) answer the company telephones; (3) wear the company uniform; (4) follow company procedures; (5) use company forms; (6) attend mandatory sales meetings; (7) attend training meetings on a regular basis; (8) sign in and out of the office; and (9) coordinate vacation time with the supervising broker. Also, management reserved the right to set sales quotas, distribute listings, reassign clients, and split commissions. The plaintiff was not permitted to work for any other real estate broker and was required to share all of her leads, listings, and commissions with the company. Under these circumstances, i
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