Opinion
813122/2014
10-28-2015
Annalise C. Freling, Plaintiff, v. Dennis Gabryszak, ADAM LOCHER, SHELDON SILVER, NEW YORK STATE ASSEMBLY, and STATE OF NEW YORK, Defendants.
Defendants, Dennis Gabryszak, by his attorney, CONNORS & VILARDO, Terrence M. Connors, Esq. and Nicholas A. Romano, Esq., of counsel, Sheldon Silver, by his attorney, HOGAN LOVELLS US LLP, Kenneth Kirschner, Esq. and Vi T. Vu, Esq., of counsel, New York State Assembly and State of New York, by their attorney, ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Ryan L. Belka, Esq., of counsel move for an order dismissing the Complaint on the grounds that all claims sounding in intentional tort are time-barred and that Plaintiff has failed to state a cause of action with respect to her remaining claims. Defendants, New York State Assembly and State of New York, also move on the ground that this court lacks jurisdiction over Plaintiff's claims against them with the exception of claims pursuant to Executive Law §296 because the New York State Court of Claims has exclusive jurisdiction for the non-Executive Law claims. However, Plaintiff has previously brought a duplicate action for the same relief in the Court of Claims such that this filing violates CPLR §3211(a)(4). They therefore, ask that the Executive Law claims be dismissed as well, on this basis.
Plaintiff, Annalise c. Freling, by her attorney, JOHN P. BARTOLOMEI & ASSOCIATES, John P. Bartolomei, Esq., of counsel, opposes, asserting that her causes of action arise out of the Defendants' violations of the terms of Plaintiff's employment contract and that her claims regarding intentional torts are, therefore, not time-barred, citing Brick v. Cohn-Hall-Marx, Co., 276 NY 259 (1937) and Sears Roebuck & Co., v. Enco Assoc., 43 NY2d 389 (1977). In the alternative Plaintiff asks for leave to amend the complaint in order to comply with CPLR §3014. She also opposes the defense claim that she has failed to state a cause of action for sexual discrimination, alleging that she has shown sufficient facts to state this cause of action.
Defendants reply that the underlying nature of Plaintiff's causes of action dictate the statute of limitations that applies and that Plaintiff cannot be permitted to extend the statute of limitations of her intentional tort claims by characterizing them as a breach of contract. They cite Brick, id., and Tighe v. Ginsberg, 146 AD2d 268 (4th Dept., 1989). They argue that Plaintiff has failed to state a claim for breach of contract because there is no allegation that there was a written contract and her allegations concerning the employee handbook fail because such handbooks do not constitute contracts in New York, citing Rich v. Coopervision, Inc., 198 AD2d 860 (4th Dept., 1993) and Blaise-Williams v. Sumitomo Bank, Ltd., 189 AD2d 584 (1st Dept., 1993). Finally, Defendants also move on the ground that Plaintiff has abandoned most of her other claims or has conceded the Defendants' positions by not opposing them in this motion, and as to the one she did oppose, she has failed to state a cause of action because her alleged facts are insufficient to give rise to a cause of action for sexual discrimination.
The legal arguments submitted by the parties were read and considered by the court but are not included in the official record of this case. The court finds that the Court of Claims has exclusive jurisdiction over the claims against the State and the Assembly with the exception of those pursuant to the Executive Law, and as to those, the Plaintiff has filed a duplicate action in that court. Therefore, all of Plaintiff's claims against the New York State Assembly and the State of New York are dismissed, either because this court lacks jurisdiction or the claim has also been filed in the Court of Claims, as the case may be.
Defendants, Silver and Gabryszak's, motions are addressed below.
The Complaint shows that Plaintiff left her employment in October of 2013 and commenced this action in November of 2014, more than 1 year after causes of action sounding in intentional tort would have accrued. She has not alleged that there was a written contract other than alleging that the provisions in the employee handbook constitute terms of a contract. The court agrees that an employee handbook does not suffice to establish a contract. See Rich, supra. The court finds that she was an at-will employee. Therefore, Plaintiff has failed to state a claim for breach of contract. Plaintiff also cannot extend the time in which to bring this action by alleging that her claims sound in contract. Consequently, all of Plaintiff's claims against Dennis Gabryszak and Sheldon Silver that seek damages for intentional torts are dismissed as time-barred and Plaintiff's breach of contract cause of action is dismissed against these Defendants for failure to state a cause of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion to dismiss the same causes of action against him, as well. The causes of action so dismissed, therefore, are the Second, Sixth, Seventh, Twelfth, Thirteenth, Fourteenth, and Seventeenth along with their corresponding aiding and abetting counterparts, Twenty-Second, Twenty-Sixth, Twenty-Seventh, Thirty-Second, Thirty-Third, Thirty-Fourth, and Thirty-Seventh.
The remaining causes of action, which have a 3 year statute of limitations, are: Sexual Discrimination (First); Negligent Infliction of Emotional Distress (Third); Discrimination Under Executive Law §296 (Fourth); Discrimination Under Executive Law §296(7) (Fifth); Negligent Supervision and Retention (Eighth); Vicarious Liability (Ninth); Prima Facie Tort (Tenth); Retaliation (Eleventh); Violation of Statute (Fifteenth); Disability Discrimination (Sixteenth); Discrimination Under the New York City Administrative Code §8-107(1) (Eighteenth); Discrimination Under the New York City Administrative Code §8-107(1)(e) (Nineteenth); and Constructive Wrongful Discharge (Twentieth), along with their aiding and abetting counterparts, Twenty-First; Twenty-Third; Twenty-Fourth; Twenty-Fifth; Twenty-Eighth; Twenty-Ninth; Thirtieth; Thirty-First; Thirty-Fifth; Thirty-Sixth; Thirty-Eighth; Thirty-Ninth; and Fortieth. They will be considered in the context of their relation to each other and not in numerical order.
As to the Third cause of action, Negligent Infliction of Emotional Distress, Defendants move on the ground that Plaintiff failed to allege that she was exposed to an unreasonable risk of bodily injury or death as required for that claim and her pleaded facts do not show such risk. They cite Bovsun v. Sanperi, 61 NY2d 219 (1984). They argue that even if bodily injury were not a necessary element, the offending behaviors must rise to a level that is outrageous and "utterly intolerable in a civilized community", citing Katehis v. Sovereign Assocs., Inc., 44 Misc 3d 1220(A) (Sup. Ct., New York Cnty., 2014) and Howell v. New York Post Co., 81 NY2d 115 (1993). The complaint alleges that Defendants "created a hostile and offensive workplace and failed to take action to stop said behavior upon receiving notice of the conduct". The harmful behaviors Plaintiff recites are those allegedly committed by Defendant Gabryszak that involve sexually suggestive and offensive comments as well as displaying sexually related materials. They argue that Plaintiff alleged that they made her feel upset but such an allegation does not rise to a sufficient level of outrageousness to satisfy the pleading requirements.
The court finds that the facts alleged do not involve risk of injury or death and that Plaintiff has not sufficiently pled a claim for Negligent Infliction of Emotional Distress. It is, therefore, dismissed against both Defendants along with its aiding and abetting counterpart, the Twenty-Third cause of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the Eighth cause of action, Negligent Supervision and Retention, Defendant Gabryszak moves to dismiss because he cannot supervise or retain himself. Defendant Silver moves on the ground that this does not state a cause of action against him because it requires that he stand in an employer or supervisory relationship to Gabryszak. Plaintiff has not alleged that he was Gabryszak's employer and her allegation that he supervised Gabryszak is conclusory. Both Silver and Gabryszak were independently elected members of the Assembly. She has also not alleged that Silver had actual knowledge of Gabryszak's actions and her allegations that he knew of said actions because she complained to Defendant Adam Locher are also conclusory, especially since she also alleges that Defendant Locher did not act upon her complaints. Therefore, he could not have negligently supervised Gabryszak. He cites Anderson v. Janson Supermarkets, LLC, 32 Misc 3d 1218(A) (Sup. Ct., Suffolk Cnty., 2011). For the same reasons he argues that he also could not have aided and abetted Gabryszak in any actions involving Plaintiff.
The court agrees with the defense arguments. Furthermore, aiding and abetting requires that a person have given substantial assistance or encouragement to the wrongdoer such that mere knowledge is insufficient. See Anderson, id.; Mtr. of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 NY2d 684 (1985). Plaintiff's allegations are insufficient to state a claim for aiding and abetting as to any of the named Defendants in the negligent supervision or retention of Gabryszak. Therefore, these causes of action are dismissed against both Defendants. Although Defendant, Adam Locher, has not brought a motion to dismiss, Plaintiff's allegations do not establish that he supervised or retained Defendant Gabryszak. Therefore, the Eighth and Twenty-Eighth causes of action as to Defendant Locher are dismissed.
As to the Ninth cause of action, Vicarious Liability, Defendants move to dismiss on the ground that this is not a separate cause of action but rather a theory of liability for holding a person accountable for another's actions. As such it would have to be pleaded in conjunction with a claim but it is not, itself, a claim.
The court finds this to be the case and therefore this cause of action is dismissed along with its aiding and abetting counterpart, the Twenty-Ninth cause of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the Tenth cause of action, Prima Facie Tort, Defendant Silver moves on the ground that Plaintiff has failed to state a claim because she has not made specific allegations as to him that would satisfy any of the elements of this tort, including aiding and abetting Gabryszak to act in some way with respect to her. She does not allege that he knew her and, therefore, she cannot allege that he had a malevolent intent to harm her nor did she allege any special damages. He cites Anderson, supra.
Defendant Gabryszak alleges with respect to the Tenth cause of action that it is an intentional tort that is time-barred.
The court finds that Plaintiff has failed to state a claim for Prima Facie Tort against either Defendant. The elements are: intentional infliction of harm without excuse or justification by acts that would otherwise be lawful, with malevolence as the sole motive. See Anderson, supra. Plaintiff has not alleged specific acts with respect to Silver. She has not alleged disinterested malevolence as the sole basis with respect to Gabryszak. She has not alleged specific damages with respect to either Defendant. Furthermore, Plaintiff has pled that all of the facts set forth in causes of action First through Ninth are the basis for the Tenth cause of action. However, the acts set forth in those prior claims do not have the same statutes of limitation. Some are one year and others, three. It cannot be determined exactly what she relies on in pleading Prima Facie Tort and,therefore, it cannot be determined which statute of limitations should apply. Plaintiff cannot circumvent the statute of limitations by pleading Prima Facie Tort, in any event. See Casa de Meadows Inc., Respondents v Zaman et al., Appellants, 76 AD3d 917 (1st Dept., 2010). Consequently, the Tenth cause of action is dismissed against both Defendants, along with its aiding and abetting counterpart, the Thirtieth cause of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the Fifteenth cause of action, Violation of Statute, the Defendants move on the ground that Plaintiff failed to plead the statutes alleged to have been violated and her allegations are vague which does not satisfy the pleading requirement for this cause of action. The State and Assembly had argued that there are some statutes which provide for a private right of action if another statute is violated as found in General Municipal Law §205-a or, alternatively, the violation of a statute may be evidence of negligence but a Plaintiff is, nevertheless, required to plead facts showing that there is a claim. See Basso v. Miller, 40 NY2d 233 (1976). Defendants argue that it cannot be discerned from Plaintiff's pleadings what she intended to claim and consequently that the pleading is insufficient, citing Mollins v. Nissan Motor Co., Ltd., 14 Misc 3d 1226(A) (Sup. Ct., Nassau Cnty., 2007).
The court agrees that the pleading is insufficient. Therefore, this cause of action is dismissed as to these Defendants as well as its aiding and abetting counterpart, the Thirty-Fifth cause of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the Eighteenth and Nineteenth causes of action, Discrimination under the New York City Administrative Code, Defendants move to dismiss on the ground that Plaintiff failed to plead facts that invoke the jurisdictional basis for a claim pursuant to that statute, namely that she worked in the City of New York. Both cite Hoffman v Parade Publ'ns, 15 NY3d 285 (2010). Her allegation that she made numerous trips to New York City does not alter this conclusion. She is not a resident of New York City and she worked for Dennis Gabryszak in Cheektowaga, New York. There was no impact within the City's boundaries.
The court agrees and, therefore, these two causes of action are dismissed as to both Defendants along with their aiding and abetting counter parts, the Thirty-Eighth and Thirty-Ninth causes of action. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the Twentieth cause of action, Constructive Wrongful Discharge, the Defendants move to dismiss on the ground that wrongful discharge is not a cognizable cause of action in New York, citing Negron v JPMorgan Chase/Chase Manhattan Bank, 14 AD3d 673 (2nd Dept., 2005) and Lobosco v NY Tel. Co./NYNEX, 96 NY2d 312 (2001).
The court finds that this cause of action does not lie in New York and, therefore, the Twentieth cause of action and its aiding and abetting counterpart, the Fortieth cause of action, are dismissed as to both Defendants. Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts to dismiss the same causes of action against him, as well.
As to the First and Fourth causes of action, Sexual Discrimination and Discrimination under Executive Law §296, Silver moves to dismiss one or the other on the ground that they are duplicative because they both allege discrimination under the New York State Human Rights Law. He argues that Plaintiff does not allege any specific conduct by him that constitutes sexual discrimination. Further, this cause of action does not apply to an individual person under the statute unless that person was the Plaintiff's employer or a co-worker with an ownership interest in the employer or who had the authority to supervise or hire and fire the Plaintiff. He cites Socci v. China Grill, Inc., No. 30586/00, 2001 WL 168276 (Sup. Ct. Kings Cnty. Oct. 5, 2001). Silver argues that he has no ownership interest in the Assembly, citing Burhans v The Assembly of the State of New York, No. 155232/13, 2014 WL 939300 (Sup. Ct., New York Cnty., Mar. 7, 2014) nor does Plaintiff allege that he had the authority to hire or fire her. Her allegations that he supervised Gabryszak are conclusory as he argued with respect to the Eighth cause of action. He cites Goldin v Engineers Country Club, 54 AD3d 658 (2nd Dept., 2008). She also failed to state a cause of action as to him for aiding and abetting Gabryszak. She has made no specific allegations of any participation by Silver in Gabryszak's actions that would constitute substantial assistance to Gabryszak in discrimination against her. He cites Winkler v Battery Trading, Inc., 89 AD3d 1016 (2nd Dept, 2011). She does not allege that he was aware of Gabryszak's actions other than constructively through her complaints to Locher. Her conclusory allegations that each defendant aided and abetted the others is insufficient to establish that he aided or abetted Gabryszak.
The court finds that the First , Fourth, Twenty-First and Twenty-Fourth causes of action do not state a claim as to Defendant Silver and therefore they are dismissed with respect to him.
Similarly, Defendant Dennis Gabryszak moves to dismiss the First or Fourth cause of action as duplicative. He also argues that both fail to state a claim against him because Plaintiff has alleged that he created a hostile work environment but her factual allegations do not rise to a level sufficient to constitute a hostile work environment. This has been found to be an environment "permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment". He cites Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004). He argues that her allegations do not establish anything that was severe or pervasive and that off-color remarks and inappropriate behavior are insufficient to state a claim pursuant to the Human Rights Law. Additionally, he moves to dismiss Plaintiff's claim based on quid pro quo sex discrimination as insufficient because Plaintiff failed to allege that her reaction to his unwelcomed sexual advances was then used as a basis for an adverse employment outcome. He cites Bartle v Mercado, 235 AD2d 651 (3rd Dept., 1997). He also moves to dismiss the corresponding aiding and abetting causes of action, the Twenty-First and Twenty-Fourth causes of action, on the ground that it is not possible for him to have aided and abetted himself.
The court finds that Plaintiff's allegations that Gabryszak repeatedly made offensive and sexually suggestive remarks including some directed to her personally and that he alluded to firing her are sufficient to state a claim for sexual discrimination by creating a hostile work environment. The court agrees that Plaintiff has not alleged a specific adverse employment action that was taken against her. Although Plaintiff recites in her First cause of action that Gabryszak threatened to terminate her, the separate statement of facts attached to the complaint does not recite facts that constitute an adverse action. Rather, her facts regarding his comments about terminating her support a cause of action under Executive Law §296, subsection 1 (a), for hostile conditions. See Mizrahi v.Taic, 266 AD2d 59 (1st Dept., 1999). A single incident is enough to create such a hostile environment. See Anderson, supra, and San Juan v. Leach, 278 AD2d 299 (2nd Dept., 2000). Additionally, the court makes note of the reasoning in Bennett v Health Management Systems, Inc., 92 AD3d 29 (1st Dept., 2011). While not binding on this court, it bears on the issue of sufficiency of pleadings. Therefore, Defendant Gabryszak's motion to dismiss either of these two causes of action for failure to state a claim is denied. However, his motion to dismiss the corresponding aiding and abetting causes of action, Twenty-First and Twenty-Fourth, is granted on the ground that he cannot be said to have aided and abetted himself.
Although Defendant Locher did not move to dismiss, the court will exercise its discretion to dismiss the First and Fourth causes of action as to him for the same reasons as found for Defendant Silver. The court also finds that the allegations with respect to Locher do not satisfy the requirements for aiding and abetting co-Defendant Gabryszak in connection with the behaviors alleged to have been committed by Gabryszak. See Murphy v. ERA United Realty, 251 AD2d 469 (2nd Dept., 1998) and Burhans, supra. Therefore, the court also dismisses the Twenty-First and Twenty-Fourth causes of action as to Defendant Locher.
As to the Fifth and Eleventh causes of action for violation of §296(7) of the Executive Law and retaliation, Defendant Silver again moves on the ground that these causes of action are duplicative and one should be dismissed on that basis, alone. He further argues, as previously, that they require Plaintiff to establish that he was her employer and she has not alleged this. Her allegations are that Gabryszak, the Assembly and the State were her employers. She also failed to allege that he was aware of any participation by her in a protected activity, in this case complaining to Defendant Locher or resisting Gabryszak's advances, or that he was aware that Gabryszak took an adverse action against her because of her complaints, thus failing to make any causal connection between the alleged adverse action and Silver. He cites Dubois v. Brookdale Univ. Hosp., 6 Misc 3d 1023(A) (Sup. Ct., Kings Cnty., 2004). He further argues that Plaintiff failed to allege what adverse action was taken by Gabryszak and that he engaged in any active or substantial participation in it or encouragement of it. Therefore, she fails to state a cause of action that he aided or abetted Gabryszak in the alleged retaliation. She has only made conclusory allegations as to his liability based upon her complaints to Locher, which she conceded were not acted upon by Locher. He again cites Burhans, supra.
The court finds this to be the case and also finds that Plaintiff failed to allege an adverse employment action that was taken against her that was causally related to a protected activity. Therefore, the Fifth, Eleventh, Twenty-Fifth and Thirty-First causes of action are dismissed as to Defendant Silver.
Defendant Gabryszak also moves to dismiss either the Fifth or Eleventh causes of action as duplicative because both are brought pursuant to the Executive Law. He further moves that Plaintiff fails to state a prima facie claim for retaliation because she failed to establish a causal connection between a protected activity in which she was engaged and an adverse employment action taken . He cites Pace v Ogden Servs. Corp., 257 AD2d 101 (3rd Dept., 1999).
This court distinguishes the facts in Pace from those in this matter. In Pace, the Defendants had moved for summary judgment after discovery was complete whereas in the matter before this court the Defendants have moved to dismiss and discovery is not complete. Plaintiff's burden is only to plead sufficiently to establish a prima facie case. Nevertheless, Plaintiff has not alleged any action taken by Gabryszak in retaliation for complaining about his alleged behavior. See Ponterio v. Kaye, 25 AD3d 865 (3rd Dept., 2006). Therefore, Plaintiff has not met her burden of showing a prima facie case for retaliation discrimination pursuant to Executive Law §296(7) and the motion to dismiss the Fifth and Eleventh causes of action is granted along with the aiding abetting counterparts, the Twenty-Fifth and Thirty-First causes of action.
Again, although Defendant Locher has not moved to dismiss the court will exercise its discretion to dismiss the Fifth and Eleventh Causes of action as to him as well as the Twenty-Fifth and Thirty-First causes of action for the reasons found for Defendant Silver.
As to the Sixteenth cause of action, Disability Discrimination, Defendant Silver again moves on the ground that Plaintiff has not shown nor alleged that he was her employer, a requirement of this cause of action and she also has not alleged that he was aware of her alleged disability and took action against her on account of it, another requirement. He cites Staskowski v. Nassau Co. Coll., 53 AD3d 611 (2nd Dept., 2008). Therefore, he argues that he could not have discriminated against her because of a disability nor could he have aided and abetted Gabryszak with respect to it.
The court finds that Plaintiff has not stated a cause of action against Defendant Silver for Disability Discrimination and therefore his motion to dismiss the Sixteenth and Thirty-Sixth causes of action is granted.
Defendant Gabryszak moves to dismiss the Sixteenth cause of action on the ground that Plaintiff failed to allege that he was aware of the claimed disability or that he took any adverse action against her because of it or failed to provide a reasonable accommodation for it. He cites Matter of McEniry v. Landi, 84 NY2d 554 (1994) and Pimentel v. Citibank, NA., 29 AD3d 141 (1st Dept., 2006).
The court finds that Plaintiff's allegations are insufficient to establish a prima facie cause of action for disability discrimination. Consequently, the Sixteenth and Thirty-Sixth causes of action are dismissed as to Dennis Gabryszak.
Although Defendant Locher did not move to dismiss the court exercises its discretion to dismiss these causes of action as to him, as well, based on the insufficiency of the pleadings as to him.
As to Plaintiff's motion to amend her Complaint the court finds that the First and Fourth causes of action are inartfully drafted and appear to be duplicative. Plaintiff's motion is granted with respect to these claims against Defendant Gabryszak and she is directed to re-plead them to eliminate duplicative allegations and claims.
ACCORDINGLY, all defense motions to dismiss Plaintiff's claims against them are granted with the exception of the First and Fourth causes of action against Dennis Gabryszak. All causes of action are dismissed against Adam Locher. The Plaintiff's motion to amend her complaint is granted in accordance with the last-above paragraph.
THIS CONSTITUTES THE ORDER OF THE COURT. SHIRLEY TROUTMAN, JSC Dated: Buffalo, New York Papers considered: 1. Amended Complaint verified June 4, 2015. 2. Affidavit of Ryan L. Belka, Esq., sworn to June 24, 2015 and exhibits. 3. Affidavit of Terrence M. Connors, Esq., sworn to June 24, 2015 and exhibits. 4. Affirmation of Kenneth Kirschner, Esq., dated June 24, 2015 and exhibits. 5. Affirmation of John P. Bartolomei, Esq., dated _____, filed September 29, 2015. 6. Affidavit of Ryan L. Belka, Esq. sworn to October 21, 2015.