Opinion
114092/09.
March 29, 2011.
Decision and Order
Defendants bring this pre answer motion to dismiss, by notice of motion dated November 5, 2010. Appended to the instant motion is an attorney affirmation, the affidavit of defendant, Adam Brown, and W-2 Wage and Tax Statements for plaintiff issued in the years 2006, 2007, 2008 and 2009. Defendants do not provide the summons and complaint.
Defendants argue first, that all causes of action must be dismissed as against Iliad Design, LLC. since it never employed plaintiff, and all causes of action alleged against it arise out of plaintiff's employment. Further, on behalf of all defendants, they urge that none meet the statutory definition of "employer," as none employed four or more employees, citing to New York State's Executive Law § 292(5) and New York City Administrative Code § 8-102(5). With respect to defendants Brown and Zemel in their individual capacity, defendants urge that claims against them are only actionable if the claims against the employer remain. Finally, defendants seek dismissal of the first and second causes of action as defective for failure to properly plead such discrimination.
Plaintiff brings a cross motion seeking an extension of time to oppose, filed January 19, 2011, after three stipulations consenting to extensions of time to oppose failed to prove sufficient. Plaintiff does append the summons and complaint to his papers.
Plaintiff alleges that both Adam Brown and Andrea Zemel are principals of Iliad Design, LLC, IBB Brewster Brown New York, LLC and Iliad Antik. Iliad Design is an art gallery, in the business of displaying, buying and selling art. Both Brown and Zemel are responsible for supervising the daily activities and operations of the art gallery. Plaintiff contends he was an employee of all three entities, working at the art gallery, under the supervision of Brown and Zemel. His employment commenced on February 1, 2001 as Gallery Manager pursuant to a verbal agreement (plaintiff does not designate who he made this verbal agreement with). Plaintiff maintains that he continued in his employment, receiving his agreed upon compensation, until sometime on or about June 2009. Plaintiff contends that he had an informal meeting with Brown and Zemel at that time, and requested but was denied a raise. Further, on or about June 2009, plaintiff claims he informed Brown and Zemel that he was suffering from severe depression and was on a suicide watch. Plaintiff required a "sponsor who was expected to call Plaintiff throughout the day." Plaintiff alleges that Brown and Zemel insisted that the sponsor stop calling plaintiff at work. Plaintiff next claims that on or about July 2009, he was asked by both Brown and Zemel to move heavy furniture, a task beyond his job description, which caused him to sustain a hernia. Plaintiff alleges that he was "instructed not to contact Workers Compensation as Defendants owed a large payment to Workers Compensation." Plaintiff ultimately required surgery, and took a leave of absence from work commencing August 17, 2009. Defendants terminated plaintiff's employment "via email based on poor performance" on or about August 28, 2009. Finally, plaintiff claims defendants failed to pay him commissions owed for the months of June, July and August 2009.
Initially, the cross-motion to extend the time to oppose is denied. It is well settled that plaintiff is not required to submit an affidavit, or any other evidentiary support, in oppostiion to a motion to dismiss pursuant to CPLR 3211 ( See Rovello v. Orofino Realty Co., Inc., 40 NY2d 633).
On a motion to dismiss pursuant to CPLR 3211(a)(1) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." ( Beal Sav. Bank v. Sommer, 8 NY3d 318, 324) (internal citations omitted) "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275) (emphasis added). A movant is entitled to dismissal under CPLR § 3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint ( Rivietz v. Wolohojian, 38 A.D.3 d 301 [1st Dept. 2007]) (citation omitted).
Defendants, in support of their contention that defendants do not meet the statutory definition of "employer," submit Brown's affidavit. Affidavits do not qualify as "documentary evidence," which would support a motion to dismiss under CPLR 3211(a)(1). ( Williamson Picket Gross, Inc. v. Hirschfeld, 92 AD2d 289 [1st Dept 1983]). Further, the W-2 Wage and Tax Statements submitted as evidence that plaintiff worked solely for I. Brewster Brown NY, LLC d/b/a Iliad Antik, without more, fail to "conclusively" establish that Iliad Design LLC was not plaintiff's employer, as alleged in plaintiff's complaint. Defendants also attempt to explain the employment relationship of a proposed intern, and an independent contractor. However, plaintiff is entitled to discovery on this issue, and to dismiss at this juncture, based on a self serving affidavit and W-2 forms, is inappropriate.
Defendants attempt to supplement their initial submission with several items of evidence in reply. However, a movant may not "remedy basic deficiencies" contained in the initial moving papers by submitting new evidence in reply, even if that evidence is in response to plaintiff's opposition. ( See Merchants Bank of New York v. Gold Lane Corp., 28 AD3d 266 [1st Dept. 2006]).
Plaintiff alleges that he requested and was refused reasonable accommodation for his suicidal tendencies. Further, he alleges a work related injury, for which he was told not to put in a claim with Worker's Compensation. He claims his firing, when he left to have surgery for that injury, was prompted by "discriminatory animus." The complaint states
Given the close temporal proximity between Plaintiff's medical condition, surgery and mental health condition (severe depression) the stated reason of poor performance for Plaintiff's termination was a mere pretext motivated by discriminatory animus and intended to obscure the act.
The court's task is to determine only whether the facts as alleged, accepting them as true and according plaintiff every possible favorable inference, fit within any cognizable legal theory." ( Ladenburg Thalmann Co., Inc. v. Tim's Amusements, Inc., 275 AD2d 243, 245 [1st Dept. 2000]).
Wherefore, it is hereby
ORDERED that the cross motion is denied; and it is further
ORDERED that the motion to dismiss is DENIED in all respects.