Opinion
502170/16
05-01-2017
Janine A. Rudzinski, Plaintiff, v. Jonathan L. Glashow, MD, PC, LAEL CARTER and JONATHAN L. GLASHOW, Defendants.
Attorney for Plaintiff Gulsah Senol, Esq. Akin Law Group PLLC 45 Broadway, Suite 1420 New York, New York 10006 (212) 825-1400 Attorney for Defendant Glashow Jason A. Storipan, Esq Fisher & Phillips, LLP 430 Mountain Avenue, Suite 303 Murray Hill, New Jersey 07974 (908) 516-1050 Attorney for Defendant Carter Philip L. Fraietta, Esq. Bursor & Fisher, P.A. 888 Seventh Avenue New York, New York 10019 (646) 837-7150
Attorney for Plaintiff Gulsah Senol, Esq. Akin Law Group PLLC 45 Broadway, Suite 1420 New York, New York 10006 (212) 825-1400 Attorney for Defendant Glashow Jason A. Storipan, Esq Fisher & Phillips, LLP 430 Mountain Avenue, Suite 303 Murray Hill, New Jersey 07974 (908) 516-1050 Attorney for Defendant Carter Philip L. Fraietta, Esq. Bursor & Fisher, P.A. 888 Seventh Avenue New York, New York 10019 (646) 837-7150 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Lael Carter (hereinafter Carter) filed on November 30, 2016 under motion sequence number four, for an order: (1) striking the amended complaint of plaintiff Janine A. Rudzinski (hereinafter plaintiff or Rudzinski) pursuant to CPLR 3024 (b), or in the alternative (2) for an order dismissing the amended complaint pursuant to CPLR 3211 (a) (7). Notice of motion Memorandum of law in support Affirmation in support Exhibits A - C Plaintiff's affirmation in opposition Memorandum of law in opposition Plaintiff's affidavit in opposition Carter's memorandum of law in reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendants Jonathan L. Glashow, M.D., PC and Jonathan L. Glashow (hereinafter the Glashow defendants) filed on November 30, 2016 under motion sequence number five, for an order dismissing the amended complaint pursuant to CPLR 3211 (a) (7). Notice of motion Memorandum of law in support Exhibit A Proposed order Plaintiff's affirmation in opposition Memorandum of law in opposition Plaintiff's affidavit in opposition
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of the Glashow defendants filed on December 1, 2016 under motion sequence number six, for an order staying the action and compelling arbitration pursuant to CPLR 7503. Notice of motion Memorandum of law in support Exhibit A Affidavit of Jonathan L. Glashow Affidavit of Grant Folsom Exhibits A - C Proposed Order Plaintiff's affidavit in opposition Memorandum of law in opposition The Glashow defendants' memorandum of law in reply
Rudzinski has used the same memorandum of law and attorney affirmation to serve as opposition to the Glashow defendants' and Carter's motions under sequence number six and seven and in support of her cross motion under sequence number eight.
The Glashow defendants' memorandum of law in reply also serves as opposition to Rudzinski's cross motion for sanctions.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Carter filed on January 12, 2017 under motion sequence number seven, for an order staying the action and compelling arbitration pursuant to CPLR 7503. Notice of motion Memorandum of law in support Affirmation in support Exhibits A - C Plaintiff's affidavit in opposition Memorandum of law in opposition
BACKGROUND
On February 17, 2016, Rudzinski commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On March 9, 2016, Carter and the Glashow defendants filed a notice of removal of the instant action to the United States District Court for the Eastern District of New York with the KCCO. By order dated April 29, 2016 and filed with the KCCO on June 26, 2016, United States District Court Judge Sterling Johnson remanded the action back to the Kings County Supreme Court with the consent of Carter and the Glashow defendants.
Plaintiff's amended verified complaint contains one hundred and fifty six allegations of fact in support of seven causes of action. The first cause of action claims discrimination in violation of New York State Executive Law § 296. The second is for unlawful retaliation in violation of New York State Executive Law § 296 (7). The third is for discrimination in violation of the Administrative Code of the City of New York § 8-107 (1). The fourth is for unlawful retaliation in violation of the Administrative Code of the City of New York § 8-107 (1) (e). The fifth is for intentional infliction of emotional distress (hereinafter IIED). The sixth is for assault and battery. The seventh is for violations of the New York State Labor Law § 663.
The amended verified complaint alleged the following salient facts, among others. On May 5, 2015, the Solomon Page Group employment agency placed the plaintiff for a job with Jonathan L. Glashow, M.D., PC. The employment began with a temporary probationary period which was to last for three months. Carter interviewed and hired the plaintiff as her executive assistant. The job site was at 737 Park Avenue, Suite 1C, New York, New York. Plaintiff was paid through Solomon Page Group at the rate of fifteen dollars per hour.
As her direct supervisor, Carter had the authority to hire, fire, promote and sanction the plaintiff. Carter used her position and authority to immediately commence targeting the plaintiff for discrimination based on her sex, gender and heterosexual orientation. Carter communicated her personal interest in the plaintiff and made numerous intrusive inquiries about her personal life and sexual history. Carter revealed her bi-sexual orientation to the plaintiff in the course of repeated and unwanted sexual advances. Carter printed out and handed the plaintiff a copy of her personal profile from a website geared toward BDSM. Carter advised the plaintiff to fill out a checklist about her own BDSM preferences. Carter also repeatedly talked to the plaintiff about the BDSM sexual practices that she and her husband engaged in with other people.
The initials BDSM are commonly understood to be an acronym for bondage, domination or discipline, sadism, and masochism (see summons and complaint ¶ 43 [m]).
Plaintiff's probationary period was set to expire in August of 2015. Carter used her supervisory position to pressure the plaintiff into moving into her home on a temporary basis. The pressure included reprimanding plaintiff about her job performance and advising her if she agreed to stay at Carter's home, her performance would be viewed more favorably. Carter also threatened to terminate plaintiff's employment if she did not move into her home. Plaintiff ultimately acquiesced to the pressure and moved in. Thereafter, Carter continued to harass the plaintiff at work and in Carter's home. While in Carter's home, Carter's husband also began harassing the plaintiff by groping her breasts and forcibly kissing her without her consent.
At some point the plaintiff complained to a co-worker named Ms. Juhi regarding Carter's conduct. Ms. Juhi attempted to mediate the issue between plaintiff and Carter. Dr. Glashow became aware of plaintiff's claim regarding Carter's harassing conduct and involved his attorneys to investigate the matter. Plaintiff was unable to proceed with the investigation because of the severe emotional distress suffered as a result of Carter's conduct. Dr. Glashow then used her alleged failure to cooperate as a pretext for firing her. Plaintiff also claims that although she had worked over forty hours a week she was not properly compensated for her overtime work.
By decision and order dated September 16, 2016 (hereinafter the September 2016 order), the Court granted two prior motions of the defendants to strike the verified complaint filed under motion sequence number one and two to the extent of striking paragraph 46, and section k and q of paragraph 75. The Court also directed the plaintiff to file an amended verified complaint by October 20, 2016, and to correct all the typographical errors pointed out in the original verified complaint. The defendants were advised that they were free to make any appropriate motions relating to the amended verified complaint as if their motions under sequence number one and two had never been made.
LAW AND APPLICATION
Carter's motion pursuant to CPLR 3024 (b)
The first branch of Carter's motion sequence number four seeks an order striking the amended verified complaint pursuant to CPLR 3024 (b) on the basis that Rudzinski did not comply with the Court's September 2016 order. Carter annexed a copy of the transcripts of the proceedings which yielded the September 2016 order but did not include a copy of the order or the complete set of motion papers which yielded that order to the instant motion. These documents would have been necessary to determine this branch of Carter's motion. By not including same Carter did not comply with the requirements of CPLR 2214 (c) and the motion may be denied for this reason alone (see Wells Fargo Home Mortg., Inc. v Mercer, 35 AD3d 728 [2nd Dept 2006] citing Alizio v Perpignano, 225 AD2d 723, 724—725 [2nd Dept 1996]).
CPLR 3024 (b) permits a party to make a motion to strike a scandalous or prejudicial matter unnecessarily inserted in a pleading (see Aronis v TLC Vision Ctrs., Inc., 49 AD3d 576, 578 [2nd Dept 2008]). In reviewing a motion to strike scandalous or prejudicial matter unnecessarily inserted in a pleading, the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action (Irving v Four Seasons Nursing and Rehabilitation Center, 121 AD3d 1046 [2nd Dept 2014]). Striking of the entire pleading is not an available remedy under CPLR 3024 (b). The movant may only strike that portion of the pleading that contains the unnecessarily scandalous and prejudicial matter. As Carter sought only to strike the entire complaint and did not specify which paragraphs were scandalous or prejudicial the motion is denied on the merits. Carter's motion pursuant to CPLR 3211 (a) (7)
The second branch of Carter's motion sequence number four seeks dismissal of the amended verified complaint pursuant to CPLR 3211 (a) (7). For this branch of the motion, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Bibbo v Arvanitakis, 145 AD3d 657, 659 [2nd Dept 2016]).
"A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Gawrych v Astoria Federal Savings and Loan, —- NYS3d —, 2017 NY Slip Op. 01538 [2nd Dept 2017] citing Well v Yeshiva Rambam, 300 AD2d 580 [2nd Dept 2002], and upon considering such an affidavit, the facts alleged therein must also be assumed to be true (Gawrych, —- NYS3d —, 2017 NY Slip Op. 01538 [2nd Dept 2017], citing Kopelowitz & Co., Inc. v Mann, 83 AD3d at 797 [2nd Dept 2011]). Nevertheless, "bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" (Gawrych, —- NYS3d —, 2017 NY Slip Op. 01538 [2nd Dept 2017] citing, Gershner v Eljamal, 111 AD3d 664, 665 [2nd Dept 2013]).
Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (Gawrych, —- NYS3d —, 2017 NY Slip Op. 01538 [2nd Dept 2017] citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Carter's motion papers do not contain any testimony from anyone with personal knowledge of any of the allegations of fact contained in the amended verified complaint. Under these circumstances the analysis is limited to whether the allegations of fact in the complaint fit within any cognizable legal theory. Plaintiff's first cause of action alleges that Carter created a hostile work environment by sexually harassing her and by taking adverse employment action against her because of her sex in violation of New York State Executive Law § 296. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310—11 [2004]).
Plaintiff also alleges that Carter intentionally inflicted emotional distress. To support a claim alleging IIED, a party is required to plead extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress; the alleged conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be utterly intolerable in a civilized community (Loch Sheldrake Beach and Tennis Inc. v Akulich, 141 AD3d 809, 814 [3rd Dept 2016]).
To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact (Butler v Magnet Sports & Entertainment Lounge, Inc., 135 AD3d 680, 681 [2nd Dept 2016]). To recover for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, that is, wrongful under all the circumstances, and that the defendant intended to make the contact (Dimisa v Oceanside Union Free School Dist., 140 AD3d 692, 693 [2nd Dept 2016]).
The allegations of fact contained in the amended verified complaint and in plaintiff's affidavit in opposition to the motion state a cognizable claim for violation of New York State Executive Law § 296; unlawful discrimination and unlawful retaliation in violation of both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL); IIED; and assault and battery.
The seventh cause of action alleges that Carter violated New York Labor Law § 663 by not paying her wages in accordance with the statute. Although Carter was plaintiff's supervisor, she was not her employer and was not responsible for paying her wages. Accordingly, the amended verified complaint does not plead a claim against Carter for violation of New York Labor Law § 663. The Glashow defendants motion pursuant to CPLR 3211 (a) (7)
The Glashow defendants contend that the amended verified complaint should be dismissed as against them because it does not contain an allegation that they encouraged, condoned or approved of Carter's alleged harassment of the plaintiff. Their motion papers, however, do not include testimony from anyone with personal knowledge of any the allegations of fact contained therein. Carter's harassment of the plaintiff began during the first week of plaintiff's employment at the job site and continued unabated thereafter both at the job site and at Carter's residence.
Accepting the allegations of fact in the amended verified complaint in the light most favorable to the plaintiff, a reasonable inference may be drawn that the Glashow defendants knew or should have known of Carter's improper conduct by a reasonable supervision of its employees at the worksite. In any event, the Glashow defendants did not submit any evidence conclusively demonstrating that they were not aware of, or did not encourage, or condone Carter's improper conduct.
The second and fourth cause of action allege that the Glashow defendants violated the NYSHRL and the NYCHRL by unlawfully retaliating against the plaintiff for complaining about Carter's harassment. The plaintiff has alleged that she was terminated by the Glashow defendants using the pretext of her alleged failure to cooperate with their investigation of her claim. Viewed in the light most favorable to the plaintiff, these allegations state a cause of action for unlawful retaliation in violation of the NYSHRL, and the NYCHRL, which is more liberal than its state counterpart (see Brightman v Prison Health Servs., Inc., 62 AD3d 472 [1st Dept 2009]).
Plaintiff's fifth cause of action alleges that the Glashow defendants engaged in extreme and outrageous conduct which caused her extreme emotional distress. The sixth cause of action alleges that the Glashow defendants committed assault and battery.Although the allegation of fact regarding Carter's conduct sets forth a cognizable claim against her for IIED and for assault and battery, they do not support such claims against the Glashow defendants. The Glashow defendants are the owners or operators of the health care business at the job site in which the plaintiff was employed. Carter was their employee and was the plaintiff's direct supervisor. Inasmuch as the tortious acts constituting IIED and assault and battery were performed directly by Carter and not by the Glashow defendants, the Glashow defendants' liability for Carter's conduct must be evaluated applying the doctrine of respondeat superior.
"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment" (Ciccone v City of New York, 138 AD3d 910, 910-911 [2nd Dept 2016] citing, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Ciccone v City of New York, 138 AD3d 910, 910—911 [2nd Dept 2016] citing, Beauchamp v City of New York, 3 AD3d 465, 466 [2nd Dept 2004]). "Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (Id.).
Liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business (Fernandez v Rustic Inn, Inc., 60 AD3d 893 [2nd Dept 2009] citing Carnegie v J.P. Phillips, Inc., 28 AD3d 599, 600 [2nd Dept 2006]). It is undisputed that Carter was an employee of the Glashow defendants in their health care business. Assault and battery are generally not job related and therefore cannot give rise to vicarious liability (see i.e. Ciccone v City of New York, 138 AD3d 910 [2nd Dept 2016]; Rodriguez v Judge, 132 AD3d 966 [2nd Dept 2015]; Saint Robert v BHAP Hous. Dev. Fund Co., 124 AD3d 752 [2nd Dept 2015]).
Furthermore, assault, battery, and IIED by a supervisor of another employee are not acts in furtherance of the Glashow defendants' business. Accordingly, the Glashow defendants cannot be held liable for Carter's intentional torts against the plaintiff on the theory of respondeat superior.
The seventh cause of action alleges that the Glashow defendants violated New York Labor Law § 663 by failing to pay her overtime wages in accordance with that statute. Article 19 of the New York State Labor Law is also called the New York State Minimum Wage Act. Section 663 of Article 19 provides for a civil private cause of action to employees who are paid less than the wages that they are entitled to under its provisions.Plaintiff's allegations of fact in the amended verified complaint and in her affidavit in opposition state a cognizable claim for violation of the New York State Minimum Wage Act (see eg. Stennet v Moveway Transfer & Storage Inc., 97 AD3d 665 [2nd Dept 2012]). The Glashow defendants did not submit any evidence conclusively demonstrating that any essential fact pertaining to New York Labor Law § 663 was not a fact at all. The Glashow defendants' motion pursuant to CPLR 7503
The Glashow defendants have moved under motion sequence number six for an order staying the action and compelling arbitration pursuant to CPLR 7503. The sworn testimony submitted in support of the motion consists of an affidavit of Grant Folsom (hereinafter Folsom), the Vice President of Technology Operations for TriNet HR Corporation (hereinafter TriNet) and an affidavit of Jonathan L. Glashow, the owner of Jonathan L. Glashow, M.D., PC.
Jonathan L. Glashow avers that he is the owner of Jonathan L. Glashow, M.D., PC and that on March 16, 2014, he retained TriNet to handle certain payroll and administrative functions for the employees of his business. His affidavit, however, does not explain the payroll and administrative functions that TriNet was retained to handle.
Folsom's affidavit contains twenty allegations of facts and refers to three annexed exhibits labeled A through C. Exhibit A is described as a copy of the terms and conditions agreement (hereinafter TCA) which contains the dispute resolution protocol (hereinafter DRP) that were in effect at TriNet since January 2013. Exhibit B is described as a true and correct copy of a screen shot of plaintiff's online portal account relating to plaintiff's acceptance of the DRP. Exhibit C is described as a true and correct copy of the acceptance e-mail sent on August 17, 2015 to the plaintiff, at the e-mail address that she provided.
Folsom avers the following facts, among others. He is Vice President of Technology Operation for TriNet and Jonathan L. Glashow, M.D., PC is one of TriNet's customers. He describes TriNet as a licensed professional employer organization that fulfills general administrative needs for their clients, including payroll processing and providing access to certain personnel information, documents and notices for their clients' work-site employees. He oversees, among other things, the security for all communication channels for TriNet. He is familiar with the process that TriNet uses to give work-site employees of its clients access to its TCA and DRP. He contends that exhibits A, B and C establish that the plaintiff agreed to the abide by the DRP by electronically viewing and accepting its terms.
Folsom does not state how long he has been employed by TriNet or how long he has been in his current position. He does not claim personal knowledge of the process that was in existence at TriNet in January 2013 to provide work-site employees with access to its TCA and DRP. He states that he was informed and believes that the online portal security protocols have not changed since January 2013. He further states that after reviewing TriNet's online portal system he was able to confirm the following facts.
On August 17, 2015, plaintiff created an online account and gained access to TriNet's online portal. At that time the DRP used by TriNet was electronically presented to the plaintiff via her online portal account. The plaintiff accepted the terms of the DRP by entering an valid e-mail and then clicking a button marked "I accept". TriNet thereafter sent an acceptance to the e-mail address that the plaintiff provided.
Arbitration is a favored method of dispute resolution in New York (Markowits v Friedman, 144 AD3d 993 [2nd Dept 2016], citing see Board of Educ. of Bloomfield Cent. School Dist. v Christa Constr., 80 NY2d 1031 [1992]). The threshold issue of whether there is a valid agreement to arbitrate is for the courts (Markowits v Friedman, 144 AD3d 993 [2nd Dept 2016], citing Matter of Primex Intl. Corp. v Wal—Mart Stores, 89 NY2d 594, 598 [1997]). Once it is determined that the parties have agreed to arbitrate the subject matter in dispute, the court's role has ended and it may not address the merits of the particular claims (Markowits v Friedman, 144 AD3d 993 [2nd Dept 2016], citing Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 NY2d 897 [1976]).
"An arbitration agreement, must be clear, explicit and unequivocal ... and must not depend upon implication or subtlety.... [P]arties consenting to arbitration surrender many of their normal rights under the procedural and substantive law of the State, and it would be unfair to infer such a significant waiver on the basis of anything less than a clear indication of intent" (Navillus Tile, Inc. v Bovis Lend Lease LMB, Inc.,74 AD3d 1299 [2nd Dept 2010]).
Neither the Glashow defendants nor Folsom, on behalf of TriNet, provided any document setting forth the agreement they entered into. Nor did they explain the payroll and administrative functions that TriNet was supposed to perform.
Instead, the Glashow defendants apparently rely on an inference that they agreed to the TCA and to TriNet's DRP because they hired TriNet to perform some functions on their behalf. The Glashow defendants, however, are not signatories to the TCA and DRP. An examination of the four corners of the TCA, referenced as exhibit A in Folsom's affidavit, shed no light on the nature of their agreement. On the other hand, the four corners of the TCA makes it abundantly clear that it applies to TriNet's own employees. Less clear is its applicability to those who are not TriNet's employees.
The TCA states that it contains information regarding the online readers' use of TriNet's secured online portal. It further states that the reader's acknowledgment and acceptance of the TCA is a condition of use of TriNet's passport and online services and also a condition of the reader's employment or continued employment with TriNet. Under a section denominated Co-Employment vs. Standard Employment, the TCA contains the following text:
TriNet is a licensed professional employer organization headquartered in San Leandro, California.
If your relationship with TriNet is beginning because the company at which you work has become a TriNet customer, this means that your company has entered into a customer service agreement with TriNet to share certain employer responsibilities as co-employers. This means that TriNet will be your employer of record for administrative purposes and will process payroll, sponsor and administer benefits, and provide certain human resources services. As your worksite employer, your company retains the responsibilities of directing your day-to-day work and managing its business affairs. This TCA addresses your relationship with TriNet and you and your worksite employer have and will continue to have additional terms and conditions of employment.
If you were hired directly by TriNet as a TriNet corporate colleague, TriNet will be your employer for all purposes under this TCA.
Paragraph 9 of TCA is denominated Dispute Resolution Protocol (DRP) and provides that the DRP covers any dispute arising out of or relating to the reader's employment with TriNet.
The plaintiff correctly contends that the TCA applies to the employee's relationship with TriNet and that there are additional terms and conditions which govern the employee's relationship with the worksite employer, i.e. the Glashow defendants. By its own terms the DRP only applies to any disputes the employee may have with TriNet, regarding payroll, benefits and human services, not to disputes with the work-site employer.
The Glashow defendants contend that the TCA and DRP also applies to the work-site employees of TriNet's clients. This interpretation, however, is not based on a clear and unambiguous reading of its content, rather it is based on use of subtle inferences and implications (Navillus Tile, Inc. v Bovis Lend Lease LMB, Inc.,74 AD3d 1299 [2nd Dept 2010]).
The Glashow defendants contend that the plaintiff agreed to the DRP by acknowledging and accepting its term when she signed in online and clicked in a way that admitted that she had read and accepted the TCA and DRP. The alleged acts of the plaintiff, even if true, cannot be construed as an agreement to arbitrate her claims against the Glashow defendants. At best, they demonstrate that she has received and has accepted the terms that apply to her. As previously indicated, the DRP only applies to any disputes the employee may have with TriNet, regarding payroll, benefits and human services, not to disputes with the work-site employer. Accordingly, the Glashow defendants have failed to establish that they entered into an arbitration agreement with the plaintiff.
Carter's motion pursuant to CPLR 7503
Carter has separately moved under motion sequence number seven for an order staying the action and compelling arbitration pursuant to CPLR 7503. In support of the motion Carter has submitted, among other things, an affirmation of her counsel, an affidavit of Folsom and an affidavit of Jonathan L. Glashow.
The affirmation of Carter's counsel is used solely to describe and admit the amended verified complaint, an affidavit by Folsom and an affidavit by Jonathan L. Glashow. The affidavits of Folsom and of Jonathan L. Glashow are identical to the affidavits submitted by the Glashow defendants. Carter's motion must be denied for the same reasons that the Glashow defendants motion seeking the same relief was denied. Essentially, Carter has failed to establish that the plaintiff entered into an arbitration agreement with her.
In light of the foregoing, it is unnecessary to address plaintiff's contention that it was Carter who set up the secure password portal connection with TriNet and executed the acknowledgment of receipt of the TCA and DRP and not herself. Nor is it necessary to address plaintiff's contention that the defendants waived any right they had to arbitrate the instant dispute by their procedural maneuvers and motion practice.
CONCLUSION
Defendant Lael Carter's motion for an order striking the amended verified complaint pursuant to CPLR 3024 (b) is denied.
Defendant Lael Carter's motion for an order dismissing the amended verified complaint pursuant to CPLR 3211 (a) (7) is granted as to the seventh cause of action and denied as to the first, second, third, fourth, fifth and sixth cause of action.
Defendants Jonathan L. Glashow, M.D., PC and Jonathan L. Glashow's joint motion for an order dismissing the amended verified complaint pursuant to CPLR 3211 (a) (7) is granted as to the fifth and sixth cause of action and denied as to the first, second, third, fourth and seventh cause of action.
Defendants Jonathan L. Glashow, M.D., PC and Jonathan L. Glashow's joint motion for an order staying the action and compelling arbitration pursuant to CPLR 7503 is denied.
Defendant Lael Carter's motion for an order staying the action and compelling arbitration pursuant to CPLR 7503 is denied.
The foregoing constitutes the decision and order of this Court.