LORETTA A. PRESKA, Chief United States District Judge

MEMORANDUM AND ORDER

:

In these consolidated actions, Grace Capobianco ("Plaintiff") sues her former employer, media conglomerate Sandow Media Corporation ("SMC"), alleging (1) she was discriminatorily fired and denied reasonable disability accommodations, in violation of the Americans with Disabilities Act (the "ADA") and New York State and City Human Rights Laws ("NYSHRL" and "NYCHRL"), (2) SMC failed to notify Plaintiff that her benefits had terminated, in violation of the Consolidated Budget Reconciliation Act ("COBRA"), and (3) SMC breached her employment contract in various ways. For the reasons set forth below, SMC's motion to dismiss [Dkt. No. 8 in 11 Civ. 3163] and motion for partial dismissal [Dkt. No. 11 in 11 Civ. 3162] are hereby GRANTED IN PART and DENIED IN PART. I. BACKGROUND

The Court takes as true the following factual allegations in the complaints and draws all reasonable inferences in favor of Plaintiff. See Goldstein v. Pataki, 516 F. 3d 50, 56 (2d Cir. 2008).

Plaintiff was hired by SMC as a North East Sales Manager in June of 2004. (Am. Compl. ¶¶ 12, 14.) In late 2006, SMC's then-Chief Financial Officer, Scott Yablon ("Yablon"), ordered Plaintiff to sign a new employment contract or else face termination, although Plaintiff is not certain if she in fact executed the new contract. (Compl. ¶¶ 33, 34.) In 2007, Plaintiff sustained a work-related back injury requiring emergency surgery followed by a work-related knee injury in mid- February 2008, which also required immediate surgery. (Am. Compl. ¶¶ 26, 38-39.) SMC, with knowledge of her scheduled knee surgery, terminated Plaintiff on February 22, 2008, just days prior to the surgery. (Id. ¶ 42.)

On August 21, 2008, Plaintiff filed a charge with the New York branch of the Equal Employment Opportunity Commission ("EEOC") claiming age and disability discrimination. (Id. ¶ 9; Courtian Aff. Ex. E.) The EEOC issued a Dismissal and Notice of Rights (also known as a right-to-sue letter) on June 24, 2010, which Plaintiff swears under oath in her affidavit she never received. (Courtian Aff. Ex. C, ¶ 4.) Plaintiff's counsel, Mark Warren Moody ("Moody"), asserts in his declaration that despite "numerous telephone and written communications with EEOC investigators" from August 21, 2 008, through March of 2011, he did not receive and was not informed of the right-to-sue letter dated June 24, 2010, until March 17, 2011. (Id. Ex. D, ¶¶ 3-6.) Evidently, Moody moved office locations around the time the letter was issued; his copy was returned to the EEOC as undeliverable and was never resent. (Id. Ex. D, ¶ 14.) Moody and Plaintiff first received copies of the right-to-sue letter on May 5, 2011, and commenced these actions against SMC on May 11, 2011. (Am. Compl. ¶ 9.)

Plaintiff originally filed two separate suits, but Judge Holwell ordered them consolidated on September 6, 2011. In the complaint in Capobianco I, Plaintiff asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and rescission. In the amended complaint in Capobianco II, Plaintiff asserts her ADA, NYSHRL and NYCHRL, and COBRA claims.

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), in lieu of answering the complaints SMC has moved to dismiss Plaintiff's federal, state, and city employment discrimination claims and Plaintiff's common law claims for breach of the implied covenant of good faith and fair dealing, unjust enrichment, and rescission as duplicative of her breach of contract claim. Further, SMC argues that to the extent Plaintiff's breach of contract claim relies on events that occurred prior to May 11, 2005, such claim should be dismissed as time-barred under the applicable six-year statute of limitations. II. LEGAL STANDARD

In assessing a motion to dismiss under Rule 12(b)(6), a court must accept all non-conclusory factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Goldstein, 516 F.3d at 56. To survive the motion, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading that offers "labels and conclusions" or "a formalistic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is "substantively identical" to that governing Rule 12(b)(6), except the plaintiff bears the burden of establishing jurisdiction in a 12(b) (1) motion, Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), and must do so by a preponderance of the evidence, Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). "'[J]urisdiccion must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)). III. DISCUSSION

A. ADA Claims

Plaintiff alleges SMC failed to provide reasonable accommodations following her back surgery in 2007 and knee surgery in 2008 and terminated her employment due to her disability, in violation of the ADA, 42 U.S.C. § 12101 et seq. SMC moves to dismiss these claims as time-barred based on the presumption that an EEOC right-to-sue letter is received three days after the day on which it was signed. SMC further argues that Plaintiff cannot rebut this presumption with a sworn statement denying receipt because evidence shows the letter was mailed to Moody the same day it was signed and that Plaintiff is ineligible for equitable tolling.

Under the ADA, a litigant is required to file an action within ninety days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(f)(1). Time limits in employment discrimination cases are not jurisdictional, Archer v. Globe Motorists Supply Co., 833 F. Supp. 211, 213 (S.D.N.Y. 1993), and are subject to equitable tolling in certain circumstances. South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994). Tolling may be appropriate when confusion was caused through no fault of the claimant. Archer, 833 F. Supp. at 213 (citing Zipes v. TWA, 455 U.S. 385 (1982)); see also South, 28 F.3d at 11 (listing "inadequate notice" as a situation that may warrant equitable tolling). However, a plaintiff or his or her attorney's "failure to act diligently" does not justify an equitable toll. South, 28 F.3d. at 12; see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("[T]he principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.").

The Court of Appeals recognizes the presumption that a letter mailed by the Government is received three days later "when the person who mailed the document followed regular office practice and procedure or has actual knowledge of having mailed the document." Isaacson v. N.Y. Organ Donor Network, 405 F. App'x 552, 553 (2d Cir. 2011) (summary order). However, that presumption "may be rebutted by admissible evidence that the document was not mailed, was received late, or was never received." Id. (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)); see also Greenidge v. Ben Hur Moving & Storage, Inc., No. 02 Civ. 1635, 2002 WL 17 96812, at *3 (E.D.N.Y. Aug. 6, 2002) ("[A]n affidavit by the claimant stating that she never received the right-to-sue letter sent by the EEOC may rebut the presumption of receipt."); Hilton v. Bedford Paving, LCC, 769 F. Supp. 2d 92, 99 (W.D.N.Y. 2010) (allowing a Title VII claim to proceed where plaintiff and counsel both submitted sworn affidavits stating neither received the right-to-sue letter and where defendant merely relied upon the presumption of receipt).

SMC's argument that a mere sworn statement cannot rebut the presumption of receipt relies primarily on cases such as Isaacson, 405 F. App'x 552, and Williams v. Chertoff, No. 06 Civ. 3847, 2008 WL 2001897 (E.D.N.Y. May 8, 2002), both of which applied a summary judgment standard. While Isaacson appears to stand for the proposition that a "'mere denial of receipt does not rebut'" the presumption of delivery, in that case the presumption was supported by an affidavit from an EEOC employee who testified that she personally mailed the letter in accordance with regular office practice and procedure. 405 F. App'x at 553 (quoting Meckel v. Cont'l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985)).

Here, whether or not Plaintiff in fact received the right-to-sue letter from the EEOC involves a dispute of material fact in light of Plaintiff's sworn testimony that she did not receive the letter. SMC's opposition creates, at best, an issue of credibility; as such, dismissal under Federal Rule of Civil Procedure 12(b)(6) is inappropriate. See Celestino v. Montauk Club, No. 97 Civ. 3943, 2002 WL 484685, at *13 (E.D.N.Y. Feb. 19, 2002) ("[E]vidence challenging [a mailing] presumption creates a credibility issue that must be resolved by the trier of fact . . . ."); see also Williams v. Manhattan E. Suite Hotels, No. 98 Civ. 6825, 1999 WL 212690 (S.D.N.Y. Apr. 12, 1999) (allowing for equitable tolling where letter was returned undeliverable, plaintiff waited almost two years before inquiring about his charge status, and suit was then brought within ninety days of EEOC's resending the right-to-sue letter); Pole v. Citibank, N.A., 556 F. Supp. 822, 823 (S.D.N.Y. 1983) (denying motion to dismiss where defendant had not established lack of diligence on part of plaintiff, who inquired with the EEOC about the status of his charge within eleven months of dismissal).

SMC further argues that Moody should be subject to the notification requirements of 29 C.F.R. § 1601.7(b), which require claimants (but not necessarily counsel) to provide the EEOC with notice of any change in address. However, SMC has provided the Court with Moody's sworn affidavit in which he maintains that between August 21, 2008, and March 17, 2011, he had multiple telephone conversations and written communications with the EEOC concerning Plaintiff's charge status. (See Courtian Aff. Ex. D, ¶ 3.) In one email, sent May 7, 2010, Moody attempted to confirm with EEOC investigator Esther Gutierrez ("Gutierrez") that no right-to-sue letter had yet been issued. (Id. Ex. D, ex. 4.) On July 23, 2010, Moody again contacted Gutierrez by email, providing her with an updated mailing address and stating, "I haven't heard anything from you since my last email below." (Id.) Moody further asserts that Gutierrez never responded to this email, despite the fact that the right-to-sue letter was issued on June 24, 2010, and returned to the EEOC on June 29, 2010. (See id. Ex. D, ¶ 16.)

The envelope containing the returned letter confirms counsel provided the post office with a forwarding address, (id. Ex. D, ex. 3), although the parties disagree as to whether or not the forwarding order expired by the time the right-to-sue letter was sent. Regardless, the EEOC did not attempt to resend the letter, even after Moody updated his address and the EEOC was in possession of the returned letter. Subsequently, in a letter sent via email on March 16, 2011, Moody again contacted Gutierrez for an update, noting, "I have heard nothing from anyone. . . . My client is currently stuck on the sidelines waiting patiently, but her rights are being affected by the delay." (Id. Ex. D, ex. 1.)

On these facts, even if counsel immediately failed to update his address with the EEOC upon moving, the postal service and the EEOC are equally culpable such that counsel has raised more than "a garden variety claim of excusable neglect" in seeking to toll the applicable statute of limitations. See Irwin, 498 U.S. at 96. Furthermore, Moody's one month delay in updating his address with the EEOC appears reasonable, particularly in light of the requirement that the EEOC be notified "of any prolonged absence from that current address." 29 C.F.R. § 1601.7(b) (emphasis added). This implicit accommodation for absences that are not "prolonged" suggests Moody's one month delay in updating his address was diligent, especially when compared to the EEOC's eight months of silence.

Accordingly, because the Court finds that equitable tolling is appropriate under the circumstances, Plaintiff timely filed these claims. SMC's motion to dismiss Plaintiff's ADA claims as being time-barred is therefore DENIED.

B. NYSHRL and NYCHRL Claims

Next, SMC moves to dismiss Plaintiff's claims arising under the NYSHRL, N.Y. Executive Law § 290 et seq., and the NYCHRL, N.Y. City Administrative Code § 8-101 et seq., on the ground that these claims were filed more than three years after SMC allegedly failed to accommodate Plaintiff and terminated her employment as a result of her disability. However, numerous courts in this circuit have recognized that the three year statute of limitations for claims arising under the NYSHRL and the NYCHRL "'is tolled during the period in which a complaint is filed . . . with the EEOC.'" Butler v. N.Y. Health & Racquet Club, 768 F. Supp. 2d 516, 536 (S.D.N.Y. 2011) (alteration in original) (quoting Esposito v. Deutsche Bank AG, 07 Civ. 6722, 2008 WL 5233590, at *5 (S.D.N.Y. Dec. 16, 2008)); see also Constance v. Pepsi Bottling Co. of N.Y., No 03 Civ. 5009, 2007 WL 2460688, at *12 (E.D.N.Y. Aug. 24, 2007) ("A charge filed with the EEOC should be treated as constructively cross-filed with the [New York State Division of Human Rights] and the statute of limitations for state claims should be tolled during the pendency of a claim filed with the EEOC.").

Applying this toll makes clear Plaintiff's state claims are timely. SMC terminated Plaintiff's employment on February 22, 2008. Plaintiff then timely filed her EEOC charge-which SMC does not dispute-on August 21, 2008. Even using June 24, 2010-the date the right-to-sue letter was originally issued-as the end of the pendency tolling period, Plaintiff's NYSHRL and NYCHRL claims, which were filed in Capobianco II on May 11, 2011, are well within the three year statute of limitations. The statute of limitations, therefore, is not a proper ground on which to dismiss these claims.

SMC next argues these claims are barred by the election of remedies doctrine because Plaintiff filed a form EEOC charge requesting cross-filing with applicable state and city agencies. The result, SMC urges, is that this Court has been deprived of subject matter jurisdiction over Plaintiff's NYSHRL and NYCHRL claims. The NYSHRL and the NYCHRL permit a complaint to be filed either in the courts or before the New York State Division of Human Rights ("NYSDHR"), but not both. See Saunders v. N.Y. City Dep't of Educ., 2010 U.S. Dist. LEXIS 71500, at *22-23 (E.D.N.Y. July 15, 2010) ("[O]nce a complainant elects to pursue his or her grievances . . . by filing a complaint with the NYSDHR, a subsequent judicial action alleging the same claims is barred by the election of remedies doctrine.").

However, "where a complaint is filed directly with the EEOC, and then only filed with the [NYSDHR] by the EEOC pursuant to Title VII requirements," the jurisdictional bar, New York Executive Law section 297(9), does not apply. Skalafuris v. N.Y. City Dep't of Corr., No. 09 Civ. 5165, 2010 WL 4273286, at *2 (S.D.N.Y. Oct. 28, 2010) (citing York v. Ass'n of the Bar of the City of N.Y., No. 00 Civ. 5961, 2001 WL 776944, at *5 (S.D.N.Y. July 11, 2001), aff'd, 286 F.3d 122 (2d Cir. 2002)). Likewise, the New York City Administrative Code contains a "nearly identical" statutory exception to the election of remedies requirement for complaints first filed with the EEOC. Id. at *3 (citing N.Y. City Admin. Code § 8-502(a)).

Here, SMC does not allege Plaintiff actually filed a complaint with the NYSDHR or with any city agency but only that her form EEOC charge requested cross-filing. By contrast, in the principal case upon which SMC relies, Hernandez v. VK Foodshop, Inc., No. 104780/99, 2000 N.Y. Misc. LEXIS 520, at *9 (Sup. Ct. N.Y. County Apr. 10, 2000), there was prima facie evidence the plaintiff not only requested cross-filing but actually filed a separate administrative complaint with the NYSDHR. Given that Plaintiff did not independently file any state or city administrative claim, she is not barred from pursuing her NYSHRL and NYCHRL claims in this Court. See, e.g., Bey v. City of N.Y., No. 99 Civ. 3873, 2009 WL 2924429, at *9 (S.D.N.Y. Sept. 9, 2009).

For the foregoing reasons, SMC's motion to dismiss Plaintiff's discrimination and reasonable accommodation claims under the NYSHRL and the NYCHRL is DENIED.

C. COBRA Claim

Plaintiff claims SMC cancelled her health benefits on February 26, 2008, i.e., after her termination, but failed timely to notify the plan administrator, Aetna, and further failed timely to notify Plaintiff of her rights to continued coverage under COBRA, 29 U.S.C. § 1166. (Am. Compl. ¶¶ 100-102.)

COBRA provides that an employee may continue to receive health care coverage at a group rate even after his or her termination. Colodney v. Continuum Health Partners, Inc., No. 03 Civ. 7276, 2004 WL 829158, at *12 (S.D.N.Y. Apr. 15, 2004) (citing 29 U.S.C. §§ 1161(a), 1163). An employer must notify its plan administrator of a qualifying event, such as termination, within thirty days of the event. See Treanor v. Metro. Transp. Auth., 414 F. Supp. 2d 297, 304 (S.D.N.Y. 2005) (citing 29 U.S.C. § 1166(a) (2)). The plan administrator is then required to provide notice to the terminated employee within fourteen days. Polito v. Tri-Wire Eng'g Solution, Inc., 699 F. Supp. 2d 480, 489 (E.D.N.Y. 2010); 29 U.S.C. § 1166(a)(4), (c). A plan administrator's failure to notify the beneficiary of COBRA eligibility can give rise to statutory damages against the plan administrator. See Colodney, 2004 WL 829158, at *12 (citing 29 U.S.C. § 1132(c)(1)).

SMC, relying upon Treanor, argues that because Plaintiff filed her COBRA claim more than three years after SMC allegedly failed to notify Aetna, the claim is time-barred under the statute of limitations. Although Congress failed to include a statute of limitations for claims arising under COBRA, the court in Treanor applied the three-year time bar that generally governs actions arising under a right created or imposed by a New York State statute, as prescribed in N.Y. C.P.L.R. 214(2). 414 F. Supp. 2d at 302-03 (analogizing liability under COBRA's notice requirements to a New York statutory claim for unfair insurance practices).

Plaintiff argues Treanor was incorrectly decided given that N.Y. C.P.L.R. 214(2) contains an exception for claims based upon a "contractual obligation or liability, express or implied," which have a six year statute of limitations as provided in N.Y. C.P.L.R. 213(2). Because her COBRA claim involves "both the terms of a contract for health insurance and the provisions of COBRA," (Pl. Opp. at 11), Plaintiff maintains the six year statute of limitations should apply to this type of mixed claim, as the court held in Mandarino v. Travelers Property Casualty Insurance Co., 831 N.Y.S.2d 452, 453-54 (App. Div. 2d Dep't 2007). However, Plaintiff mischaracterizes the nature of her claim. Although a contract for health insurance indeed existed, the notification obligations SMC allegedly violated are purely creatures of the COBRA statute. See Slupinski v. Oxford Health Plans, No. 05 Civ. 9240, 2007 WL 2815690, at *2-3 (S.D.N.Y. Sept. 26, 2007) (citing Treanor, 414 F. Supp. 2d at 302-03). Accordingly, as Plaintiff commenced these actions more than three years after SMC was obligated to report her termination to Aetna, her COBRA claim is time-barred.

Moreover, even if Plaintiff's COBRA claim was not time-barred, her pleadings are insufficient to support a claim against SMC. The amended complaint in Capobianco II identifies Aetna, rather than SMC, as the administrator of her health plan. (Am. Compl. ¶ 100.) The administrator has the exclusive duty of providing an employee with notice of his or her rights under COBRA within fourteen days of his or her termination. See Tufano v. Riegei Transp., Inc., No. 03 Civ, 0977, 2006 WL 335693, at *4 (E.D.N.Y. Feb. 11, 2006). While the plan administrator's failure to comply with COBRA's notice requirements entitles the beneficiary to statutory and other damages, damages are not available against an employer who is not the administrator. Colodney, 2004 WL 829158, at *12 (citing 29 U.S.C. § 1132(c)(1), (3)). Therefore, Plaintiff's failure to name the plan administrator as a defendant in Capobianco II is additional grounds for dismissal of her COBRA claim. See id.; Guzman v. Macy's Retail Holdings, Inc., No. 09 Civ. 4472, 2010 WL 1222044, at *8 (S.D.N.Y. Mar. 29, 2010).

Accordingly, SMC's motion to dismiss Plaintiff's COBRA claim is GRANTED.

D. State Common Law Claims

In the complaint in Capobianco I, Plaintiff asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, rescission, and unjust enrichment. SMC moves to dismiss the latter three claims as duplicative of Plaintiff's breach of contract claim. SMC further argues that Plaintiff's breach of contract claim should be dismissed insofar as it involves conduct which occurred more than six years prior to her suit. Plaintiff did not file an opposition to SMC's motion.

1. Implied Covenant of Good Faith and Fair Dealing

"New York law . . . does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim, based upon the same facts, is also pled." Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002). As such, a claim alleging breach of the implied covenant of good faith and fair dealing "can survive a motion to dismiss 'only if it is based on allegations different than those underlying the accompanying breach of contract claim.'" ARI & Co. v. Regent Int'l Corp., 273 F. Supp. 2d 518, 522 (S.D.N.Y. 2003) (quoting Siradas v. Chase Lincoln First Bank, N.A., No. 98 Civ. 4028, 1999 WL 787658, at *6 (S.D.N.Y. Sept. 30, 1999)).

Here, Plaintiff's claim for breach of the implied covenant of good faith and fair dealing explicitly refers back to her employment contract. (See Compl. ¶ 52 ("In connection with the Employment Agreement, SMC breached [the implied covenant of good faith and fair dealing] violently."); id. ¶ 58 ("The foregoing constitutes a breach of the implied covenant of good faith and fair dealing in the Employment Contract.").) Accordingly, as this claim arises from the same set of facts and allegations underlying Plaintiff's breach of contract claim, SMC's motion to dismiss Plaintiff's claim for breach of the implied covenant of good faith and fair dealing is GRANTED.

2. Unjust Enrichment

Similar to a duplicative claim for breach of the implied covenant of good faith and fair dealing, if a plaintiff's unjust enrichment claim is premised on the terms of an underlying contract, the unjust enrichment claim should be dismissed as duplicative of a breach of contract claim. See Malmsteen v. Berdon, LLP, 477 F. Supp. 2d 655, 668 (S.D.N.Y. 2007) (citing Goldner v. Possilico, 776 N.Y.S.2d 818, 820 (App. Div. 2d Dep't 2004)). In such a case, the plaintiff should proceed under a breach of contract theory of liability only. Id.

Here, in support of her claim for unjust enrichment, Plaintiff states that SMC "received more than it should have," that is, under the terms of her employment contract. (Compl. ¶ 77.) Plaintiff does not allege any facts to suggest her claim for unjust enrichment is unrelated to her breach of contract claim. Accordingly, SMC's motion to dismiss Plaintiff's claim for unjust enrichment is GRANTED.

3. Rescission

Plaintiff seeks rescission of a "Late 2006 Contract," which may or may not have been entered into by Plaintiff after SMC employee Yablon allegedly yelled at her, threatening that "if she didn't enter into the Late 2006 Contract she would be fired." (Id. ¶ 62.) Plaintiff alleges SMC coerced her into signing the new contract (assuming she in fact signed it) "in order to force [Plaintiff] to relinquish what was due to her pursuant to" her original employment contract. (Id. ¶ 72.) Construing all facts in the light most favorable to Plaintiff, the non-moving party, Plaintiff has alleged a plausible scenario in which she was coerced into executing a modified employment contract. The claim for rescission of such a contract, to the extent it exists, is not duplicative of her claim for breach of the initial employment contract.

Accordingly, SMC's motion to dismiss Plaintiff's claim for rescission is DENIED.

4. Breach of Contract

New York law provides a six year statute of limitations for breach of contract claims. See N.Y. C.P.L.R. 213(2). The time period runs from the date of the alleged breach. Malmsteen, 477 F. Supp. 2d at 655; Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-03 (1993) ("[T]he statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury." (internal quotation marks and citation omitted)).

Accordingly, SMC's motion to dismiss Plaintiff's breach of contract claim to the extent Plaintiff seeks to recover monies allegedly owing on the contract before May 11, 2005, is GRANTED. IV. CONCLUSION

For the foregoing reasons, SMC's motion to dismiss [Dkt. No. 8 in 11 Civ. 3163] and motion for partial dismissal [Dkt. No. 11 in 11 Civ. 3162] are hereby GRANTED IN PART and DENIED IN PART.

The following claims are DISMISSED: (1) Plaintiff's claim for breach of the implied covenant of good faith and fair dealing; (2) Plaintiff's claim for unjust enrichment; (3) Plaintiff's COBRA claim; and (4) Plaintiff's breach of contract claim insofar as Plaintiff seeks to recover monies allegedly owing on the contract before May 11, 2005.

The following claims may go forward: (1) Plaintiff's discrimination claims arising under the ADA; (2) Plaintiff's discrimination claims arising under the NYSHRL and the NYCHRL; (3) Plaintiff's breach of contract claim insofar as Plaintiff seeks to recover monies allegedly owing on the contract on or after May 11, 2005; and (4) Plaintiff's claim for rescission.

SMC has written the Court regarding Plaintiff's counsel's unresponsiveness during the pendency of the instant motions and especially since these actions were reassigned to the undersigned. According to SMC, Plaintiff has failed to pursue any discovery despite the parties' joint scheduling order that set deadlines of January 25, 2012, for fact discovery and March 23, 2012, for expert discovery. SMC requests sixty days to conduct additional discovery in the event any of Plaintiff's claims survive the motions to dismiss.

In light of the facts that discovery has closed, SMC has apparently been unsuccessful in contacting Plaintiff's counsel for close to a year, and some of Plaintiff's claims have survived the motions to dismiss, Plaintiff's counsel shall confer with counsel for SMC and inform the Court by letter dated no later than October 15, 2012, how the parties propose to proceed in this litigation. Plaintiff's counsel is cautioned that failure to so confer may result in the dismissal of these actions. SO ORDERED. Dated: New York, New York

September 28, 2012

/s/_________

UNITED STATES DISTRICT JUDGE