O'Neill v. Atlantic Security Guards, Inc.

250 A.D.2d 493, 671 N.Y.S.2d 976, 1998 N.Y. App. Div. LEXIS 5838

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered December 11, 1997, which, to the extent appealed from as limited by plaintiff’s brief, granted defendant-respondent’s motion for dismissal of plaintiffs third, fourth and fifth causes of action against it, unanimously affirmed, without costs.

We agree with the IAS Court that plaintiff has not produced writings sufficient to take the alleged oral contract for a finder’s fee out of the Statute of Frauds and that the alleged agreement is therefore void (see, DeRosis v Kaufman, 219 AD2d 376, 379). Also falling within the ambit of the Statute of Frauds is the oral contract pursuant to which plaintiff claims he was entitled to be employed by defendant-respondent for a five-year term. Plaintiff has failed to show that subjecting it to the Statute would be unconscionable (see, e.g., Bon Temps Agency v Towers Org., 187 AD2d 376, 377, lv denied 82 NY2d 651). Nor does plaintiff have a cause of action for age discrimination in employment under Administrative Code of the City of New York § 8-107, since dispositive documentary evidence showed him to have been an independent contractor and to have acted as such through a corporation, and an independent contractor can only be an “employee” for purposes of the City employment discrimination ban if a natural person (see, Administrative Code § 8-102 [5]). We have considered plaintiffs remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Ellerin, Williams, Mazzarelli and Andrias, JJ.