Opinion
151606/2017
06-25-2020
Tracey SANDLER, Plaintiff, v. Joseph BENDEN, Bayview Manor LLC d/b/a South Point Plaza Nursing and Rehabilitation Center, Ilene Nathanson, Pamela Brodlieb, Long Island University, Defendant.
Tracy Sandler, No Firm Name, Recorded 55 Cedar Drive, Roslyn, NY 11576, By: David Zevin, Esq., for Plaintiff. Joseph Benden and Bayview Manor LLC d/b/a Sount Point Plaza Nursing and Rehabilitation Center, Naness, Chaiet & Naness LLC, 375 N Broadway Ste 202, Jericho, NY 11753, By: Clifford Paul Chaiet, Esq., and William Matthew Groh, Esq., for Defendants. Ilene Nathanson, Pamela Brodlieb, Long Island University, Long Island University Office of University Counsel, 700 Northern Boulevard, Brookville, NY 11548By: Catherine Margaret Murphy, Esq., for Defendants.
Tracy Sandler, No Firm Name, Recorded 55 Cedar Drive, Roslyn, NY 11576, By: David Zevin, Esq., for Plaintiff.
Joseph Benden and Bayview Manor LLC d/b/a Sount Point Plaza Nursing and Rehabilitation Center, Naness, Chaiet & Naness LLC, 375 N Broadway Ste 202, Jericho, NY 11753, By: Clifford Paul Chaiet, Esq., and William Matthew Groh, Esq., for Defendants.
Ilene Nathanson, Pamela Brodlieb, Long Island University, Long Island University Office of University Counsel, 700 Northern Boulevard, Brookville, NY 11548By: Catherine Margaret Murphy, Esq., for Defendants.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 19, 20, 21, 22, 27, 28, 29, 30, 31, 32, 33, 37, 39, 40, 41, 42, 43, 44 were read on this motion for DISMISSAL.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 23, 24, 25, 26, 34, 35, 36 were read on this motion for DISMISSAL.
Motion sequence numbers 001 and 002 are consolidated for purposes of disposition.
This is an action in which plaintiff Tracey Sandler seeks to recover against defendants Joseph Benden (Benden), Bayview Manor LLC d/b/a South Point Plaza Nursing and Rehabilitation Center (Bayview Manor LLC) (collectively, the Bayview Manor defendants), and defendants Ilene L. Nathanson (Nathanson), Pamela Brodlieb (Brodlieb), and Long Island University (LIU) (collectively, the LIU defendants), seeking damages for alleged violations of the New York State Human Rights Law (NYSHRL) and New York State Labor Law. Plaintiff also alleges causes of action for (1) breach of contract; (2) breach of fiduciary; (3) unjust enrichment; (4) defamation; (5) fraud; and (6) tortious interference.
The LIU defendants move for an order, pursuant to CPLR 3211(a) (1) (5) and (7), dismissing the complaint in its entirety (motion sequence number 001). The Bayview Manor defendants move for an order, pursuant to CPLR 3211(a) (1) and (7), dismissing the complaint in its entirety (motion sequence number 002). Defendants' motions are granted.
BACKGROUND
Plaintiff was a part-time student in LIU's Master of Social Work program during the 2013-14 academic year. As part of the program, LIU placed plaintiff in an internship at Bayview Manor under the supervision of Benden. Plaintiff alleges that she performed only "secretarial tasks" and "grunt work," such as "filing, typing, photocopying, fetching food, wheeling patients, etc.," and that she received nearly nothing of educational value. After plaintiff complained about the quality of the internship in a February 28, 2014 memorandum, she was dismissed from Bayview Manor and expelled from LIU. Plaintiff was later reinstated at LIU, but did not receive course credit for her year-long internship or a tuition refund.
In return for the internship, plaintiff alleges that Bayview Manor received the benefit of her services, which otherwise would have been performed by a paid employee, as well as through benefits from LIU. She alleges that LIU benefited from its relationship with plaintiff through tuition and continued accreditation (NY St Cts Elec Filing [NYSCEF] Doc No. 1).
PROCEDURAL HISTORY
Plaintiff initially brought suit against defendants in federal court. In a decision dated August 19, 2016, the District Court for the Eastern District of New York (Feuerstein, J.) dismissed allegations that defendants had violated the Fair Labor Standards Act, the Americans with Disabilities Act, the Rehabilitation Act, as well as plaintiff's claims under the New York State Labor Law, on the grounds that plaintiff -- as an unpaid student intern -- was not an employee of Bayview Manor (see Sandler v. Joseph Benden and Bayview Manor LLC d/b/a South Point Plaza Nursing and Rehabilitation Center , No. 15-CV-1193).
On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the District Court's determination that plaintiff failed to state a claim for relief under the New York Labor Law. Observing that there was no expectation of financial compensation to plaintiff, that she did indeed receive educational training during her internship, and that her internship coincided with the academic calendar, the Second Circuit held that plaintiff did not plausibly plead that she was an employee (see Sandler v. Benden , 715 Fed. Appx. 40 [2d Cir 2017] ).
DISCUSSION
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the documentary evidence submitted must resolve all factual issues, definitively disposing of the plaintiff's claims (see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002] ; Art & Fashion Group Corp. v. Cyclops Prod., Inc. , 120 AD3d 436, 438 [1st Dept 2014] ). It is "granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002] ; McCully v. Jersey Partners, Inc. , 60 AD3d 562, 562 [1st Dept 2009] ).
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez , 84 NY2d 83, 87-88 [1994] ). However, "bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not presumed to be true and accorded every favorable inference" ( Biondi v. Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000] [internal quotation marks and citation omitted] ).
FIRST THROUGH FOURTH CAUSES OF ACTION
Plaintiff's first cause of action alleges discrimination pursuant to the NYSHRL — Executive Law § 296. Plaintiff's second cause of action alleges discrimination pursuant Nassau County Administrative Code, Chapter XXI, Title C2. Plaintiff third cause of action alleges discrimination pursuant to NYSHRL and New York Correction Law Article 23-A. Plaintiff's fourth cause of action alleges violation of New York Labor Law § 741.
In the Federal action plaintiff entered into a stipulation to withdraw this cause of action. In plaintiff's memorandum of law in opposition to the motion to dismiss, plaintiff does not offer opposition to this cause of action.
Plaintiff must demonstrate that she was an employee in a protected category to prevail on the above causes of action. Both the District Court and the Second Circuit determined that plaintiff was not an employee of Bayview Manor. The well-worn definition of res judicata is that it prohibits re-litigation of a matter when an earlier action disposed of the same transaction or series of transactions, involving the same parties, and there was a full and fair opportunity for the parties to be heard in the prior forum ( Paramount Pictures Corp. v. Allianz Risk Transfer AG , 31 NY3d 64 [2018] ). Res judicata precludes plaintiff from renewing the issue of plaintiff's status as an employee. In the absence of an employer/employee relationship, plaintiff cannot maintain these four causes of action.
Plaintiff's argument that the amendments to Executive Law to add section 296-c should be applied retroactively is without merit. Executive Law 296 was amended on July 22, 2014 to include unpaid interns. It is a primary rule of statutory construction that statutes are construed prospectively, and are not retroactively applicable, unless the language of the statute or the Legislature clearly expresses an intent that the statute be construed retroactively (see McKinney's Cons Laws of NY, Statutes § 51 [b] ; Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998] ). Plaintiff's internship at Bayview Manor ended on or about March 11, 2014, prior to the effective date of the statute. Plaintiff has failed to establish that the Legislature intended to apply the amendment retroactively.
Accordingly, the first, second, third, and fourth causes of action must be dismissed as against all defendants.
FIFTH AND SIXTH CAUSES OF ACTION — BREACH OF CONTRACT
Plaintiff's fifth and sixth causes of action seek damages for breach of contract against LIU and the Bayview Manor defendants. Plaintiff alleges that LIU breached its obligations pursuant to the field work manual and "field contract" (NYSCEF Doc No 1). Plaintiff argues that the purported contract required defendant LIU to place plaintiff at an educationally useful internship and, furthermore, that the internship should have been properly vetted.
Plaintiff further alleges that the Bayview Manor defendants established a contract with plaintiff by employing her and acting as an agent of LIU, and, therefore, were subject to the alleged contract between plaintiff and LIU as their agents.
LIU argues that the essence of plaintiff's claim is a challenge to LIU's decision to remove plaintiff from its nursing program. The Bayview Manor defendants argue that they never entered into a contract of employment with plaintiff.
New York law reflects the policy that the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make decisions concerning wholly internal matters ( Maas v. Cornell University , 94 NY2d 87, 92 [1999] ).
Here, plaintiff cannot maintain a breach of contract claim against LIU as her claim is one to challenge the decisions of an academic institution, which may only properly be brought in an Article 78 proceeding. Although plaintiff styles her claim as one for breach of contract, it is not based on a breach of a specific enforceable promise by defendant LIU. This court declines to convert this action to a special proceeding under Article 78, since plaintiff's claims would have been barred by the fourth-month statute of limitations applicable to such proceedings.
Plaintiff's breach of contract claim against the Bayview Manor defendants likewise fails. Plaintiff claims are directed at the conditions of her academic internship. Plaintiff has failed to articulate a contractual relationship with the Bayview Manor defendants outside of the academic internship established through and with LIU.
Accordingly, plaintiff's fifth and sixth causes of action must be dismissed.
SEVENTH AND EIGHTH CAUSES OF ACTION — BREACH OF FIDUCIARY DUTY
Plaintiff's seventh and eighth causes of action seeks damages for breach of fiduciary duty against LIU and the Bayview Manor defendants. Plaintiff argues that LIU undertook to act as fiduciary to plaintiff pursuant to the Codes of Ethics of the Council of Social Work Education and Nation Association of Social Workers. Plaintiff alleges that the Bayview Manor defendants, as agents of LIU, were bound by this fiduciary duty.
To state a cause of action for breach of fiduciary duty, "plaintiffs must allege that (1) defendant owed them a fiduciary duty, (2) defendant committed misconduct, and (3) they suffered damages caused by that misconduct" ( Burry v. Madison Park Owner LLC , 84 AD3d 699, 699-700 [1st Dept 2011] ).
In the case at bar, there are no facts presented which would tend to show that any fiduciary relationship ever existed between plaintiff and LIU and/or Bayview Manor. Plaintiff does not allege sufficient facts to suggest a fiduciary relationship; instead, plaintiff simply alleges that defendants by their conduct failed to meet her academic expectations.
Accordingly, the seventh and eighth causes of action are dismissed.
NINTH CAUSE OF ACTION — UNJUST ENRICHMENT
Plaintiff's ninth cause of action seeks damages for unjust enrichment. Plaintiff alleges that she rendered "services" to defendants and that she should have been compensated for said services. An unjust enrichment claim requires a plaintiff to allege that defendant was enriched, at the expense of plaintiff, and that it would be inequitable to permit the defendant to retain the benefit ( Mandarin Trading Ltd. v. Wildenstein , 16 NY3d 173, 182 [2011] ). Defendants argue that plaintiff fails to establish that defendants received anything rightfully belonging to plaintiff.
Plaintiff's assertion of an unjust enrichment claim here is unavailing. Plaintiff fails to allege sufficient facts to support the ascertain that she expected to receive compensation for her internship. The internship was, there is no dispute, a prerequisite for the completion of plaintiff's degree. That plaintiff, for whatever reason, failed to complete the internship and to obtain credit toward her degree, cannot, after the fact, transform the nature of the endeavor.
Accordingly, plaintiff's unjust enrichment claim is dismissed.
TENTH CAUSE OF ACTION — DEFAMATION
Plaintiff's tenth cause of action seeks damages for defamation against the Bayview Manor defendants. Plaintiff alleges that statements made by Benden to LIU regarding plaintiff's performance were defamatory. The complaint, however, fails to allege that the statements by Benden at issue were false — a necessary element of a defamation cause of action (see Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept 1999] ). Benden's statements, moreover, are protected by a qualified privilege (see Foster v. Churchill , 87 NY2d 744, 751 [1996] ). Qualified privilege "extends to a communication made by one person to another upon a subject in which both have an interest" ( Liberman v. Gelstein, 80 NY2d 429, 437 [1992] ). In the instant matter, the allegedly defamatory statements were made by Benden as member of the Bayview Manor staff regarding plaintiff's performance. Accordingly, Benden statements are protected by the qualified privilege. Plaintiff's conclusory allegations of malice are insufficient to overcome the privilege (see Gondal v. New York City Dept. of Educ. , 19 AD3d 141 [1st Dept 2005] ).
Accordingly, plaintiff's defamation cause of action is dismissed.
ELEVENTH CAUSE OF ACTION — FRAUD
Plaintiff's eleventh cause of action seeks damages for fraud against the Bayview Manor defendants. Plaintiff alleges that the Bayview Manor defendants allegedly submitted false samples of her work to Broieb and LIU and represented that such samples accurately reflected plaintiff's work. To state a cause of action for fraud, a plaintiff must "show a material misrepresentation of an existing fact, made with knowledge of its falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" ( MBIA Ins. Corp. v. Countrywide Home Loans, Inc. , 87 AD3d 287, 293 [1st Dept 2011] ).
The Bayview Manor defendants argue that this claim is essentially duplicative of plaintiff's defamation claim. The core of plaintiff's claim is that Benden provided LIU with misleadingly incomplete samples of plaintiff's process recordings. Plaintiff further argues that these incomplete records contributed to her being "terminated" from LIU.
Here, plaintiff's claim for fraud must be dismissed as it is, in the court's view, manifestly duplicative of plaintiff's educational malpractice allegations. The complaint pleads no factual misrepresentation by defendants, on which plaintiff was intended to, and justifiably did, rely, to her detriment. Plaintiff fails, in addition, to satisfy the specificity requirements for a claim of fraud as required CPLR 3016(b).
Accordingly, plaintiff's fraud cause of action is dismissed.
TWELTH CAUSE OF ACTION — TORTIOUS INTERFERENCE WITH CONTRACT
Plaintiff's twelfth cause of action seeks damages for tortious interference with contract. Plaintiff alleges that the Bayview Manor defendants tortiously interfered with the contract between LIU and plaintiff by "knowingly," and "willfully" and maliciously providing false information and documents to the LIU defendants. To establish a claim of tortious interference with contract, "the plaintiff must show the existence of its valid contract with a third party, defendant's knowledge of that contract, defendant's intentional and improper procuring of a breach, and damages" ( White Plains Coat & Apron Co., Inc. v. Cintas Corp. , 8 NY3d 422, 426 [2007] ). Inasmuch as plaintiff cannot establish any cognizable contract with LIU, let alone a breach of such contract, her claim of tortious interference with contract should be dismissed.
Accordingly, it is
ORDERED that the motion of defendants Ilene L. Nathanson, Pamela Brodlieb, and Long Island University (motion sequence number 001) to dismiss the complaint, pursuant to CPLR 3211(a) (1) (5) and (7), is granted, and the complaint is dismissed in its entirety against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court; and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further
ORDERED that the motion of defendants Joseph Benden and Bayview Manor LLC d/b/a South Point Plaza Nursing and Rehabilitation Center (motion sequence number 002) to dismiss the complaint, pursuant to CPLR 3211(a) (1) and (7), is granted, and the complaint is dismissed in its entirety against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court; and the Clerk is directed to enter judgment accordingly in favor of said defendants