Opinion
10 Civ. 8490 (NRB)
08-26-2011
DOUGLAS ORTIZ, Plaintiff, v. STANDARD & POOR'S, MARTHA DIESSLIN. Defendants.
Attorney for Plaintiff: Evan L. Goldman, Esq. Schiffman Abraham Kaufman & Ritter, P.C. 3 University Plaza, Suite 410 P.O. Box 568 Hackensack, NJ 07601-0568 Attorney for Defendants: Steven D. Hurd, Esq. Gregory I. Raisin, Esq. Proskauer Rose LLP One Newark Center, 18th Floor Newark, NJ 07102
MEMORANDUM AND ORDER
Plaintiff Douglas Ortiz ("Ortiz" or "plaintiff") brings this action against his former employer Standard & Poor's Financial Services LLC ("S&P") and his former supervisor Martha Diessilin ("Diessilin" or "S&P Supervisor," together with S&P, "defendants"), asserting six counts of age and disability discrimination and related claims pursuant to New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 291, et seq. (Counts I and II); New York City Human Rights Law ("NYCHRL"), NYC Admin. C. § 8-101, et seq. (Count III); and the common law (Counts IV, V, and VI for hostile work environment, wrongful discharge, and intentional infliction of emotional distress ("IIED"), respectively).
Defendants note that the proper spelling of this defendant's surname is "Diesslin." Because we, for the reasons stated below, grant defendants' motion to dismiss in its entirety, there is no need to amend the caption. In addition, defendants note that the proper name of S&P is "Standard & Poor's Financial Services, LLC", not "Standard & Poor's."
Defendants now move to dismiss the Amended Complaint ("Am. Compl.") with prejudice under Federal Rule of Civil Procedure 12(b)(6), on the grounds that (1) plaintiff has not stated a plausible claim for relief for wrongful termination or failure to accommodate in violation of NYSHRL or NYCHRL based on either age or disability; (2) plaintiff has not stated a plausible claim for relief for intentional infliction of emotional distress ("IIED"); (3) plaintiff's claim of wrongful termination in violation of New Jersey public policy is preempted by New Jersey statute and inapplicable to his employment in New York; and (4) plaintiff has not stated a plausible claim of hostile work environment. For the reasons set forth below, defendants' motion to dismiss is granted in its entirety.
Because plaintiff does not respond to defendants' motion to dismiss Count V of the Amended Complainti.e., wrongful termination in violation of New Jersey public policy -- we consider this claim abandoned and do not address it herein. See e.g., Cloke-Browne v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 10 Civ. 2249 (LTS), 2011 WL 666187, at *7 (S.D.N.Y., Feb. 9, 2011)("Plaintiff's moving papers fail to respond to Defendants' motion to dismiss his claim for promissory estoppel. Accordingly, the Court considers Plaintiff to have abandoned this claim."); Robinson v. Fischer, No. 09 Civ. 8882 (LAK)(AJP), 2010 WL 5376204, at *10 (S.D.N.Y., Dec. 29, 2010) (stating that "[f]ederal courts have the discretion to deem a claim abandoned when a defendant moves to dismiss that claim and the plaintiff fails to address in their opposition papers defendants' arguments for dismissing such a claim" and listing cases); Lipton v. Cnty. of Orange, 315 F.Supp.2d 434, 446 (S.D.N.Y. 2004) ("This Court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.") (citing cases)).
BACKGROUND
The following facts are drawn from the Amended Complaint. We note that we include plaintiff's substantive allegations of workplace discrimination and harassment in their entirety. For purposes of reviewing this motion to dismiss, all nonconclusory allegations are accepted as true. See S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 100 (2d Cir. 2009).
Plaintiff worked as a senior analyst for S&P from 1998 until December 9, 2009, when his employment was terminated on the stated basis of a reduction in the workplace. Am. Compl. ¶¶ 1, 15. During the course of his employment, plaintiff "suffered from severe depression," although he contends that "his medical condition did not prevent him from performing his job duties up to [S&P's] expectations." Id. ¶¶ 3, 6. Nonetheless, plaintiff alleges that he was "chastised and ridiculed" at work when he made a request for accommodations from his employer, and that he was "subjected . . . to constant harassment and a hostile work environment." Id. ¶ 11.
Defendants assert that plaintiff was terminated on December 9, 2008, not 2009. Defs.' Mem. in Support of their Mot. to Dismiss ("Defs.' Mem.") at 1 n.2. Because this case was removed to federal court on November 12, 2009, we note that defendants are almost certainly correct. Nonetheless, we use plaintiff's specified date for consistency.
On or about March 2008, plaintiff spoke to his supervisor, Diessilin, about "her [perceived] harassment over his [disability]" and she stated that "she wants 'the old Doug who laughs back.'" Id. ¶¶ 4, 5. Thereafter, Diessilin "called a meeting with [plaintiff's] co-workers to determine his 'threat factor'" and "expressed a concern about [plaintiff's] condition based upon 'what has been in the news,' [in presumptive reference] to violence at various college campuses throughout the country." Id. ¶¶ 7, 9. After the meeting, Diessilin "advised that she was left with no alternative 'but to report the concerns of the other employees about [plaintiff's] instability and concern for their well-being to Human Resources.'" Id. ¶ 8. In response, plaintiff "complained to [Diessilin] about the inappropriateness of disclosing his medical condition and the continual harassment associated with his medical condition." Id. ¶ 10. Plaintiff asserts that Diessilin "knowingly and willingly disclosed plaintiff's medical conditions to his co-workers" (id. ¶ 14), and that he never displayed "any signs of instability in the workplace." Id. ¶ 13.
At the time of plaintiff's termination, he was fifty-nine years old. Id. ¶ 16.
II. Procedural Background
Plaintiff commenced this action in the Superior Court of the State of New Jersey on or about August 14, 2009. Defendants removed the action to the United States District Court for the District of New Jersey on November 12, 2009, on the basis of diversity jurisdiction.
Plaintiff filed his amended complaint on August 31, 2010. In response, on September 28, 2010, defendants moved to dismiss several counts and to transfer venue to this Court. By order dated November 10, 2010, the district court in New Jersey granted defendants' motion to transfer and, as a result, denied without prejudice their motion to dismiss. See Ortiz v. Standard & Poor's, No. 09 Civ. 5757 (DMC), 2010 WL 4687879, at *3 (D.N.J. Nov. 3, 2010) ("Because the Court believes that proper venue for this action lies in the Southern District of New York, and that New York law must be applied to the facts, this Court will not consider the valid and persuasive arguments raised by Defendants in their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), but will instead leave those issues to be resolved as the litigation proceeds in New York.").
DISCUSSION
I. Legal Standard for a Motion to Dismiss
When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule 12(b)(6), the Court must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in plaintiff's favor. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint must include "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). Where a plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. This pleading standard applies in "all civil actions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009).
In employment discrimination cases, a plaintiff is not required to establish a prima facie case at the pleadings stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) ("The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement."). "Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim." Barbosa v. Continuum Health Partners Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y. 2010) (quotations marks and citation omitted) (emphasis added).
As a preliminary matter, we note that plaintiff improperly attempts to support his claims by including in his opposition brief (Plaintiff's "Informal Opposition" by Letter to the Court dated January 28, 2011 ("Pl.'s Opp'n)) additional (uncorroborated) factual allegations that were not present in his Amended Complaint. For example, plaintiff states that he was replaced by a younger employee (Pl.'s Opp'n at 9); that defendants were aware that he had attempted to commit suicide and was receiving psychiatric treatment (id. at 7 n.1); and that he was subjected to greater hostility after filing an Equal Employment Opportunity Commission ("EEOC") complaint for hostile work environment (id. at 13). Even assuming, arguendo, that these new assertions were sufficient to support plaintiff's claims -- which they are not -- this Court may only consider the allegations in the Amended Complaint for purposes of this motion. See Reliance Ins. Co. v. Poly Vision Corp., 474 F.3d 54, 57 (2d Cir. 2007) (noting that it is "error" for a district court to consider allegations outside the complaint and its exhibits in resolving a 12(b)(6) motion). Moreover, we note that plaintiff had ample opportunity to incorporate these additional assertions in his Amended Complaint. Indeed, in a pre-motion telephone conference on December 12, 2010, plaintiff's counsel specifically represented to this Court -- in response to this Court's inquiry about the possibility of plaintiff filing a second amended complaint -- that there were no additional facts to add to those alleged in the Amended Complaint. The stated purpose of this Court's inquiry was to ascertain whether there were any additional allegations in order to avoid a situation in which the briefing of the motion to dismiss (and this Court's issuance of an opinion) was simply an academic exercise followed by plaintiff's filing of a second amended complaint with additional allegations.
A. Age and Disability Discrimination Under NYSHRL and NYCHRL
"The standards for liability under [the NYSHRL and NYCHRL] are the same as those under the equivalent federal antidiscrimination laws." Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006). See also Barbosa, 716 F.Supp.2d at 217 ("Employment discrimination claims brought under . . . the NYSHRL [] and the NYCHRL are generally analyzed under the same evidentiary framework that applies to Title VII and ADEA claims."); Pabon v. N.Y.C. Transit Auth., 703 F.Supp.2d 188, 198 (E.D.N.Y. 2010) (noting that disability-based discrimination claims under the NYSHRL "rely upon an analytical framework that substantially mirrors" the federal Americans With Disabilities Act ("ADA") analysis). Thus, in order to make out a prima facie case of age discrimination in this action, plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered from an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Id. "Although a plaintiff need not plead facts to establish a prima facie case of employment discrimination in order to survive a motion to dismiss, the court considers the elements of a prima facie case in determining whether there is sufficient factual matter in the Complaint which, if true, give the [d]efendant[s] fair notice of [p]laintiff['s] employment discrimination claims and the grounds on which such claims rests." Wolf v. Time Warner, Inc., 09 Civ 6549 (RJS), 2011 WL 856264, at *4 (S.D.N.Y. Mar. 3, 2011) (internal quotation marks omitted).
Similarly, "[t]o establish a prima facie disability discrimination case under the ADA, a plaintiff must show (1) that his employer is subject to the ADA, (2) that he suffers from a disability within the meaning of the ADA, (3) that he was otherwise qualified to perform his job functions with or without reasonable accommodation, and (4) that he suffered an adverse employment action because of his disability." Pabon, 703 F.Supp.2d at 194. "In this Circuit, a disability-based discrimination claim under the NYSHRL and NYCHRL involve the 'same elements' as an ADA claim." Jernigan v. Dalton Management Co., LLC, 2011 WL 3273514 (SAS), at *3 (S.D.N.Y. July 29, 2011) (citation omitted).
In Counts I, II, and III of his Amended Complaint, plaintiff contends that he was wrongfully terminated on the basis of his age and/or disability (specifically, depression) in violation of the NYSHRL and NYCHRL. Plaintiff has failed to state a viable claim for relief under either statutory scheme because he does not plead sufficient facts to state a plausible claim that S&P took any adverse action against him because of either his age or disability. See, e.g., Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (stating that, in the context of a Title VII claim, "[i]t is axiomatic that mistreatment at work . . . is actionable . . . only when it occurs because of an employee's . . . protected characteristics.").
In his Amended Complaint, plaintiff states -- without further detail -- that he "made a request for accommodations and made Standard & Poor's aware of his medical condition, [but] it failed to make any efforts to accommodate his condition." Am. Compl. ¶ 11. However, plaintiff does not assert the elements of a failure to accommodate claim, or otherwise reference this allegation when setting forth his causes of action. As a result, to the extent that plaintiff asserts a failure to accommodate claim, it is dismissed.
To the limited extent that the Amended Complaint asserts discrimination, it does so only in a conclusory manner. See, e.g., Am. Compl. ¶ 18 ("Standard & Poor's effectively terminated plaintiff's employment because of his age."); id. ¶ 21 ("Due to his age, plaintiff has been unlawfully discharged."); id. ¶ 24 ("Standard & Poor's has subjected plaintiff to unlawful discrimination on the basis of his medical condition . . . ."); id. ¶ 28 ("Due to his disability, plaintiff has been unlawfully discharged."). Such "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim for relief. Iqbal, 129 S. Ct. at 1949.
Indeed, the sparseness of the Amended Complaint is underscored by the fact that plaintiff's opposition brief did not cite to any paragraph of the Amended Complaint in arguing against dismissal of his claims, with the exception of the following conclusory allegation: "Due to his disability, plaintiff has been unlawfully discharged." Am. Compl. ¶ 28. See generally Pl.'s Opp'n.
While plaintiff is correct that he need not establish a prima facie case of discrimination to survive a Rule 12(b)(6) motion, he "is required to set forth factual circumstances from which a discriminatory motivation can be inferred." Perry v. State of N.Y. Dep't of Labor, No. 08 Civ. 4610 (PKC), 2009 WL 2575713, at *2 (S.D.N.Y. Aug. 20, 2009) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)). Yet there is simply nothing in the Amended Complaint to suggest that the company-wide reduction in workforce ("RIF") was a "pretext" to obscure plaintiff's wrongful termination on the basis of age or disability. Am. Compl. ¶ 15.
For example, aside from a statement that plaintiff is fifty-nine years old, there is no reference to plaintiff's age in the Amended Complaint. The fact that plaintiff was (a) fifty-nine years old and (b) terminated, cannot, without more, constitute a plausible age discrimination claim. See, e.g., Zucker v. Five Towns Coll., No. 09 Civ. 4884 (JS) (AKT), 2010 WL 3310698, at *2-3 (E.D.N.Y. Aug. 18, 2010) ("[I]f such barebones allegations sufficed to state a claim, then any time an ADEA-covered employer terminated an employee over age forty, the employer would be unable to replace that employee with someone younger[] without exposing itself to potential liability for age discrimination.") (citation and quotation marks omitted) (dismissing plaintiff's age discrimination claim on a Rule 12(b)(6) motion where plaintiff pled that his work performance was satisfactory, he was replaced by a younger person, and he was subjected to unjustified criticism because these allegations suggest only that plaintiff may have been treated unfairly, not discriminatorily). See also Payne v. Malemathew, 09 Civ. 1634 (CS), 2011 WL 3043920, at *2 (S.D.N.Y. July 22, 2011)(holding that pro se plaintiff's allegations that he was the oldest person in his department and that he was replaced by two younger employees after his termination did not support an inference of discrimination sufficient to survive a motion to dismiss).
Without actual facts demonstrating discriminatory animus, discrimination is just one possibility for S & P's actions -- as such, plaintiff's claim that he was terminated for discriminatory reasons may be conceivable, but it is certainly not plausible. The only two incidents which plaintiff describes with any specificity -- i.e., his supervisor's statement that "she wants 'the old Doug who laughs back'" and the workplace meeting between his colleagues -- resound in concern for plaintiff's behavior in the workplace rather than his protected characteristics. Indeed, plaintiff admits that his coworkers were worried about his "instability" and their own welfare. Cf. Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 116 (2d Cir. 2007) ("The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.").
Because plaintiff does not demonstrate any "facially plausible" nexus between his termination and his protected characteristics, Counts I, II, and III are dismissed.
We note that plaintiff misconstrues the standard of review governing a 12(b)(6) motion. First, relying on Tellabs, Inc. v, Makor Issues & Rights, Ltd., 531 U.S. 308 (2007), plaintiff asserts that the "inquiry is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individualized allegation, scrutinized in isolation, meets that standard." Yet Tellabs articulated the standard of review for securities fraud cases brought pursuant to the Private Securities Litigation Reform Act, and is entirely inapplicable here. Indeed, scienter is not an element of an employment discrimination claim.
Second, plaintiff contends that defendants' motion must be denied because plaintiff's "disability discrimination claim . . . give[s] [d]efendant[s] notice of the claim and is more inclusive than a short plain statement of the claim." Pl.'s Opp'n at 6. Plaintiff alleges that notice pleading is "all that is required" for discrimination cases under the Supreme Court's decision in Swierkiewicz. Id. (citing 534 U.S. 506). Yet while Swierkiewicz's core teaching-that a plaintiff need not establish a prima facie case of discrimination to survive a motion to dismiss-remains intact, the pleading standard relied upon in that case has since been altered by Twombly and Iqbal. See Barbosa v. Continuum Health Partners Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y. 2010) ("Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.") (quotations marks and citation omitted) (emphasis added). Indeed, the case upon which plaintiff relies, Morris v. David Lerner Associates, belies his point. 680 F.Supp.2d 430, 439 (E.D.N.Y. 2010) ("[T]o survive a Rule 12(b)(6) motion, plaintiff need not establish a prima case of discrimination, but her complaint must give fair notice of her claims, and those claims must be facially plausible.") (emphasis added). Accord Francis v. Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009) ("The standard that the plaintiffs quoted from Swierkiewicz [i.e., that a motion to dismiss should be denied only where it is clear that plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts] . . . was explicitly overruled in Twombly."); Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) ("We have to conclude . . . that . . . Swierkiewicz [has been specifically repudiated by both Twombly and Iqbal, at least insofar as it concerns pleading requirements . . . ."). The Second Circuit has yet to consider the issue. See Schwab v. Smalls, 2011 WL 3156530, at *2 (2d Cir. July 27, 2011) (Summary Order).
B. Hostile Work Environment
In Count IV of his Amended Complaint, plaintiff asserts that he was subjected to a hostile work environment. For such a claim to be viable, a plaintiff must plead facts suggesting that the alleged conduct: (1) is objectively severe or pervasive, such that it creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates an environment that is discriminatory, hostile or abusive to the plaintiff because of the plaintiff's membership in a protected class. See Patane, 508 F.3d at 113. Yet the Amended Complaint does not set forth sufficient allegations to satisfy any of these prongs. "Simple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment." Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004).
"Hostile work environment claims under claims under the NYSHRL are analyzed in the same manner as Title VII claims." Ellis v. City of New York, 2011 WL 3279057, at *8 (S.D.N.Y. July 28, 2011) (citing Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010)).
The Amended Complaint does not specify the statute upon which plaintiff's hostile work environment claim is based. In his opposition papers, plaintiff asserts that he "is alleging said claim under the New York Human Rights Law" (Pl.'s Opp'n at 11) but, again, fails to state whether he is asserting claims under NYSHRL or NYCHRL. In any event, plaintiff's hostile work environment claim must be dismissed because it fails to state a claim under even the more permissive NYCHRL standard -- that is, plaintiff does not show that he experienced disparate treatment because of his age or disability. See Williams v. New York City Housing Auth., 872 N.Y.S.2d 27, 39 (N.Y. App. Div. 1st Dep't 2009) ("For HRL liability, therefore, the primary issue for a trier of fact in harassment cases, as in other terms-and-conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her [protected characteristics].").
As discussed above, plaintiff does not plead sufficient facts to give rise to the inference that any perceived mistreatment he endured was the result of discriminatory motives. As such, plaintiff cannot demonstrate that his "workplace [was] permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of [his] employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Indeed, plaintiff does not even try to satisfy the requisite criteria for his hostile work environment claim. For example, plaintiff alleges that he spoke to his supervisor "regarding her harassment over his severe depression" but fails to provide even one example of the alleged harassment leading up to the conversation. Accordingly, Count V of plaintiff's Amended Complaint is dismissed.
C. IIED
In Count VI of the Amended Complaint, Plaintiff asserts an IIED claim based on the same allegations underlying his failed discrimination and hostile work environment claims. Because plaintiff does not plausibly demonstrate that he was subject to any discriminatory conduct or workplace harassment, he does not meet the more exacting standard for IIED claims - i.e., that the "conduct [is] so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993) (noting the "strictness" of the IIED standard, and observing that "of the [IIED] claims considered by [the New York Court of Appeals], every one has failed because the alleged conduct was not sufficiently outrageous"). See also, Snyder v. Phelps, 131 S. Ct. 1207 (Mar. 2, 2011) (Alito, J., dissenting) (noting that IIED "is a very narrow tort with requirements that 'are rigorous, and difficult to satisfy'") (quoting W. Keeton et al., Prosser and Keeton on Law of Torts § 12, 61 (5th ed. 1984)). Indeed, "[c]ourts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation." Margrabe v. Sexter & Warmflash, P.C., 353 Fed.Appx. 547, 550 (2d Cir. Nov. 17, 2009) (quoting Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 333 (1st Dept. 1998)). Accordingly, Count VI of the Amended Complaint is dismissed.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted in its entirety. In light of plaintiff's prior opportunity to amend his complaint, his counsel's representation to the Court that he has no additional facts that could substantiate his claim, and the degree to which plaintiff falls short of asserting facially plausible claims against defendants, leave to replead is denied. Dated: New York, New York
August 26, 2011
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Attorney for Plaintiff:
Evan L. Goldman, Esq.
Schiffman Abraham Kaufman & Ritter, P.C.
3 University Plaza, Suite 410
P.O. Box 568
Hackensack, NJ 07601-0568 Attorney for Defendants:
Steven D. Hurd, Esq.
Gregory I. Raisin, Esq.
Proskauer Rose LLP
One Newark Center, 18th Floor
Newark, NJ 07102