Police Dept, 176 F3d 125, 135-136 [2d Cir 1999], cert den 528 US 964 [1999] and
Scott v Massachusetts Mutual Life Insurance Co., 86 NY2d 429, 433 [1995]).
Here, the complaint itself suggests that whatever work, if any, plaintiff did for David
and/or Perfect World was not part of plaintiff's regular work for Bulletproof, since it
alleges plaintiff would "leave from work for the day at around 6:00 pm and ... David ...
would always stop her and insist on meeting [p]laintiff in his apartment" (complaint,
¶ 28). Arguably, this would make plaintiff an after-hours volunteer for Perfect
World with no right of action for employment discrimination against Perfect World (see
O'Connor v Davis, 126 F3d 112, 115-116 [2d Cir 1997], cert den 522 US 1114
[1998]). Even plaintiff's relationship with Bulletproof is not clear-cut. Defendants have
also argued that plaintiff was not an employee of Bulletproof but rather an independent
contractor for it (see interrogatory 3 at exhibit 4 to cross-moving papers). As an
independent contractor, plaintiff would not be protected under Executive Law §
296. "Executive Law § 296(1)(a) only governs discrimination in the traditional
employer-employee relationship and not in the employment of independent contractors"
(Murphy v ERA United Realty, 251 AD2d 469, 470 [2d Dept 1998], citing
Scott v Massachusetts Mutual Life Ins. Co., supra). However, that issue
was apparently not explored at the depositions and cannot be decided as a matter of law
based on the evidence now before the court.
Sex Discrimination and
Harassment
Plaintiff asserts claims of sexual
discrimination and harassment under both the state and the City human rights laws.
The complaint alleges that plaintiff was forced to spend time in David's apartment as