Free Motion for Summary Judgment - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DONALD WAINRIGHT, ET AL., Plaintiffs; V. OSM COMMUNICATIONS, INC., ET AL; Defendants;

: : : : : : : : : :

CIVIL ACTION NO. 3:01-CV-02158 (WWE)

September 8, 2005

DEFENDANTS OSM COMMUNICATIONS, INC. AND ROBERT E. POLANSKY'S LOCAL RULE 56(a)l STATEMENT

Defendants, OSM Communications, Inc. and Robert E. Polansky hereby submit a listing of facts that Defendants contend are not in dispute and are based upon admissible evidence. In addition to the items that Defendants conceded as not in dispute in Plaintiffs' Local Rule 56(a)1 statement, Defendants' assert the following:

FACTS 1. Plaintiff Donald Wainright's contract is governed by New York Law. See

paragraph 8(f) of the Wainright Employment Contract submitted in support of Plaintiffs' motion for summary judgment which states: 8. (f) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED ACCORDING TO, THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLICABLE TO AGREEMENTS TO BE WHOLLY PERFORMED THEREIN. THE EXECUTIVE HEREBY CONSENTS TO THE JURSIDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK,

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AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY WAIVES ANY CLAIM THAT NEW YORK COUNTY OR THE SOUTHERN DISTRICT OF NEW YORK IS AN INCONVENIENT FORUM. See Exhibit "B" attached to the affidavit of Robert E. Polansky sworn to the 8th day of September 2005. 2. Plaintiff Russo-Williams was an at-will employee in the State of New

York. See deposition Testimony of Plaintiff Russo-Williams dated March 1, 2004, page 23, Lines 24-25 and page 24, lines 1-5 and Exhibit "A" attached hereto. 3. Plaintiffs were discharged for cause. See memoranda dated December 6,

2000 attached as Exhibit "E" to the affidavit of Robert E. Polansky in Support of his motion for summary judgment. 4. When Donald Wainright left the OSM Communications premises for the

last time, he admitted that he had password protected his company computer and did not give the password to OSM Communications thereby precluding OSM Communications from accessing the corporate information contained on the computer. See deposition testimony of Donald Wainright dated February 10, 2004 Page 89 Lines 14-16 attached as Exhibit "G" to the affidavit of Robert E. Polansky in Support of his motion for summary judgment. 5. Plaintiff Donald Wainright admitted failing to turn over to OSM See

Communications any software or discs belonging to OSM Communications.

deposition testimony of Donald Wainright dated February 10, 2004 Page 88 Lines 10-17

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attached as Exhibit "G" to the affidavit of Robert E. Polansky in Support of his motion for summary judgment. 6. When Deborah Russo-Williams left OSM Communications she admitted

that she had password protected his company computer and did not give the password to OSM Communications thereby precluding OSM Communications from accessing the corporate information contained on the computer. (Deposition of Deborah RussoWilliams dated March 1, 2004 Page 59 Lines 1-14 attached as Exhibit "H" to the affidavit of Robert E. Polansky in Support of his motion for summary judgment.

FOR THE DEFEDANTS OSM COMMUNICATIONS, INC. And ROBERT E. POLANSKY

By: _______________________________ Michael P. Goldsmith, Esq. 38 West 21st Street -- 5th Floor New York, NY 10010-6977 Telephone: (212) 677-4441 ext.18 Fed. Bar No. phv0219 Attorney for Defendants OSM Communications, Inc. and Robert E. Polansky

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CERTIFICATE OF SERVICE

This is to certify that on this 8th day of September 2005, a copy of the foregoing Local Rule 56(1) Statement was deposited in the United States mail, first-class, postage prepaid, addressed to: Robert E. Arnold, Esq. Law Offices of Robert E. Arnold, LLC 205 Church Street, Suite 310 New Haven CT 06510-1805 J. Michael Sulzbach, Esq. 385 Orange Street New Haven, CT 06511

_____________________________ Michael P. Goldsmith, Esq.

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EXHIBIT A

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