Cancel v East Coast Fertility, P.C.

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Cancel v East Coast Fertility, P.C. 2012 NY Slip Op 30239(U) January 19, 2012 Sup Ct, Nassau County Docket Number: 14668/11 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. vV/"I [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIAL/IS PART 31 NASSAU COUNTY ALEXIS CANCEL Index No. : 14668/11 Motion Seq. No. : 01 Motion Date: 11/30/11 Plaintiff . against EAST COAST FERTILITY , P. , CHARLES TODARO DANIEL KRINER and DAVID KRINER Defendants. . The followin2 papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibit Affirmation in O osition and Exhibit and MemorandUI of Law Reply Affirmation Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendants move, pursuant to CPLR 3211(a)(7), for an order: Jl) fourt through sixth and seventh through twelft causes of dismissing the first action and (2) striking paragraphs " and " H" of the Verified Complaint's prayer for relief. Plaintiff opposes the motion. Commencing in March of2010 , plaintiff was employed as an Assistant Practice Administrator by defendant East Coast Fertilty, P. C. (" ECF"), yvhere she served in defendant ECF' s Brooklyn offces. See Defendants ' Affirmation in Support Exhibit A , 15. During the course of her employment , plaintiff - then defendant ECF' s only Hispanic female employee claims that she performed a broad range of duties , among them the handling of loan financing for [* 2] the entire firm and human resource-related duties , which included staffing matters , office management , and overseeing the scheduling of doctors and patients. See Defendants ' Affirmation in Support Exhibit A ~~ 12- 13. However, despite her " stellar work ethic " plaintiff contends that defendant ECF' manager - defendant Charles Todaro (" Todaro ) - and later defendant ECF' s principals, defendants Daniel Kreiner and Dr. David Kreiner, subjected her to racial and gender- based See discrimination before ilegally terminating her in October of2010. in Support Exhbit A ~~ 14 , Defendants ' Affirmation 17 , 19 20- 27. More specifically, plaintiff has alleged that defendant Todaro - her immediate supervisor- responded to her job place suggestions and requests for guidance and/or support in a hostile and condescending maner , that he undermined her authority by refusing to communicate with her and ignoring her recommendations with respect to staf and that defendant Todaro increased her job responsibilties and other relevant job concerns by requiring that she divide her time between defendant ECF' s Brooklyn and Plainedge offces , but then refused to provide her with a fuctioning work station at the Plainedge location. See Defendants ' Affirmation in Support Exhibit A ~115- 19. Additionally, plaintiff alleges that defendant Dr. David Kreiner ignored her oral and written complaints about defendant Todaro and instead " coddled" and declined to discipline him that defendant Daniel Kreiner demeaned and humilated her (either when conversing with her directlyandlor through e-mails sent to co-employees), that defendant Daniel Kreiner utilized derogatory language and had an " overall misogyistic attitude " towards all female employees and that , at one point, defendant Daniel Kreiner falsely accused plaintiff (in an email exchange), of infecting the firm s computers with a virus and then threatened to fire her. See Defendants [* 3] Affirmation in Support Exhibit A ~~ 21- 27. Plaintiff contends that defendant ECF finally made good on its threat and discharged her in October of2010. See Defendants ' Affirmation in Support Exhibit A ,~ 26- 27. Thereafter , by Sumons and Verified Complaint dated October 2011 , plaintiff commenced the within action, alleging in sum that the defendants ilegally discriminated against her based upon her race and gender and then retaliated when she objected to their misconduct by terminating her employment. Verified Complaint fuher See Defendants ' Affirmation in Support Exhibit A ~~ 8 , 27. The alleges that , after defendants discharged her in October of2010 plaintiff suffered mental anguish and emotional distress, as well as substatial monetar injur and damage to her personal and professional reputation. See Defendants ' Affirmation in Support Exhibit A ~~ 28- 30. Based on these claims , and others , plaintiff has interposed twelve, separately pleaded causes of action , including claims' grounded upon race and gender discrimination in violation the New York State and Nassau County Human Rights Laws (see Executive Law ~ 296; Nassau County Administrative Code ~ 21- 8(1), (2), (4)(a)); retaliatory discharge; aiding and abetting statutory violations of the New York State and Nassau County HUIan Rights Law and intentional inflction of emotional distress. Among other things , the Verified Complaint' Wherefore" clause also demands counsel fees and punitive damages. See Defendants Affirmation in Support Exhibit A ~~ " Defendants now move , pre- Answer , for an order , pursuant to CPLR g 3211(a)(7), dismissing ten of the twelve causes of action the first; fourh through sixth causes of action (to the extent based on racial discrimination) and the seventh though twelfth causes of action and also for an order striking paragraphs " G" and " H" of the Verified Complaint's " Wherefore [* 4] clause. Notably, the second and third causes of action, as to which dismissal has not been sought allege gender- based discrimination. Defendants ' motion to dismiss should be granted to the extent indicated below. The standards for recovery under section 296 of the Executive Law are in accord with Federal stadards under Title VII of the Civil Rights Act of 1964. Assn. 90 N. Y.2d 623, 665 N. v. Murphy 2d 25 (1997); v. Ferrante American Lung Plastics, Inc. , 946 Cadilac Rubber Y.1996). A plaintiff alleging discrimination in employment has the initial F.supp. l108 (W. A.D. 3d 744 922 N. 295, 786 N. Y.S.2d 382 (2004); v. Ferrante v. Forrest S.2d 210 (2d Dept. 2011); v. See Lambert case of discrimination. prima facie burden of establishing a Macy s E. , Inc. , 84 Jewish Guildfor the Blind 3 N. YJd at 629. To do so, a American Lung Assn., supra plaintiff must car the "initial burden of showing ' that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occured circumstances giving rise to an inference of discrimination v. Suriel Dominican Republic Educ. quoting Forrest & Mentoring Project, Inc. 85 A.DJd 1464 , 926 N. Y.s.2d 198 (3d Dept. 2011) v. Jewish Guildfor the Blind, supra v. Lambert at 305; under Macy's E., Inc. , supra. Significantly, although Title VII and the Executive Law prohibit discrimination, nevertheless they are "' not a shield against harsh treatment at the work place. Supp.2d _ quoting Neratko v. 1999 WL 1129052 (E. Frank Y. 1999), 31 F. Supp.2d 270 284 (W. Bolger 794 F.2d. 602 , 609- 10 (11 th Cir. 1986). supra Accord Forrest aff' Gibson v. Brown 242 F. 3d 365 (2d Cir. 2000) Y. 1998). v. See also McCollum Jewish Guildfor the Blind, at 309- 310. Nor can a plaintiff "' tur a personal feud into a * * * discrimination case by accusation '" since "' (p)ersonal animosity is not the equivalent of * * * discrimination Gibson v. Brown , supra. See also Forrest v. Jewish Guild for the Blind, supra at 309- 310; Gorley [* 5] v. 29 Fed. Appx. , 2000 WL 1876909 (S. - F. Supp.2d. Metro-North Commuter R. aff' Y. 2000), 764 (2d Cir. 2002). In order to survive a motion to dismiss , the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible Cir. 1994). v. Forrest United Federation of Teachers 162 F. 3d 1148 (2d Cir. 1998); v. See also Smith 35 FJd 709 , 713 (2d Yusufv. Vassar College, inference of racially discriminatory intent." Jewish Guildfor the Blind, supra. Preliminarily, plaintiff has agreed to voluntarily withdraw her claims based upon the Nassau County Code and those branches of the " Wherefore " clause which demand counsel fees See and puntive damages. Law in Opposition pp. 1 Plaintiffs Affrmation in Opposition ~ 8; Plaintiffs Memorandum of fn. , 8. Accordingly, the seventh through eleventh cause of action are di missed upon consent and paragraphs " G" and " H" ate tricken from the "Wherefore clause in the V erifi d Complaint. With respect to the remaining claims as to which dismissal bas been sought - the first and fourh through sixth causes of action viewed (see Leon v. the Cour agree. s 2d 83 , Martinez 84 N. 614 N. that even when most favorably 2d 912 (1994)), they do not state viable claims for racial discrimination under the New York State Human Rights LaW. Notably, to succeed on a discrimination claim , a plaintiff must properly allege that a complained-of discharge or other adverse action " occured under circUIstaces giving rise to an inference of discrimination. Smith v, v. Forrest Jewish Guildfor the Blind, supra United Federation of Teachers , supra. at 304- 305. Moreover bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be tre See Maas pursuant to CPLR ~ 3211(a)(7). 716 (1999). See a/so Godfrey v. v. See also Cornell University, Spano 13 N. Y.3d 358 on a motion 94 N. Y.2d' 87 699 N. 892 N. Y.s. 2d 272 (2009); S.2d Peter F. Gaito [* 6] v. Architecture, LLC Simone Dev. Corp. 46 A. DJd 530 846 N. 2d 386 (2d Dept. 2007). Here , while the Verified Complaint alleges inter alia that plaintiff was the only Hispanic female in the involved work environment (see discriminatory fashion and that she was treated in an allegedly Defendants ' Affrmation in Support Exhibit A ~~ 6 , 17; 12- 26) - said Verified Complaint never identifies conduct from which an inference of unlawfl and/or the Verified Complaint does not e., discriminatory racial misconduct can be plausibly derived, contain discretely pleaded factual averments which causally link the defendants ' allegedly objectionable conduct to plaintiffs race. Rather , the Verified Complaint relies upon assertions to the effect that , among other things , defendant Todaro allegedly mistreated plaintiff by undermining her authority, by " setting her up to fail" and by humilating and/or demeanng her- and that since this misconduct occured - defendant Todaro therefore have been "treating her harshly" based on her race. (and the other defendants) must See Defendants ' Affirmation in Support Exhibit A ~ 19. Upon these largely circular allegations , however , it is just as likely that the objectionable conduct was attibutable to another , entirely distinct and non-racial rationale. at 309- 310. Jewish Guildfor the Blind, supra Supp. 806, v. 813 (S. Y. 1997). Corp. Reuben H Donnelley, See also Padob v. See Forrest Entex Information Service , at 713; See generally Yusufv. Vassar College, supra Supp. 2d . 960 Wilson 1998 WL 770555 (S. D.N. Y. 1998) The few incidents actually depicted with any degree of specificity in the Verified Complaint , by themselves generate no paricular inference of discriminatory motive or intent based on race. Nor has plaintiff buttressed or enhanced her claims by alleging that she was racial comments (cj, Forrest v. Jewish Guildfor the Blind, supra inter alia, subjected to at 324- 325), treated disparately from other , similarly situated employees or exposed to any other misconduct in which race can be implicated as a motivating or underlying factor. [* 7] Instead , the Verified Complaint appears to rely on the inconclusive assumption that because plaintiff is Hispanic - and that since the ensuing misconduct allegedly occured See generally defendants ' actions must necessarily have been motivated by racial discrimination. v. Smith v. United Federation of Teachers, supra; Peters 2010 WL 1372686 (S. D. N. Y. 2010); (S. v. Padob Y. 2009); v. Jimenez Entex Information Service , City of New York 605 F. Supp.2d 485, 522 v. Federation of Teachers, supra; Peters v. v. v. See Smith not suffice to generate a plausible inference of prohibited discrimination. 2011); Padob v. See also Forrest at 813. supra Jewish Cours have held, however, that this sort of conjectural reasoning wil Guildfor the Blind, supra. York, supra. Cj Foss Supp. 2d. Mount Sinai, Hosp. Mount Sinai, Hosp. , supra; Jimenez Supp2d. Coca Cola Enterprises v. Entex Information Service, supra; Wilson v. United City of New , 2011 WL 1303346 (E. Reuben H Donnelley, Corp. , supra at 4. Additionally", and to the extent plaintiff (cf. is advancing a hostile work environment theory Defendants ' Affrmation in Support Exhibit A ~~ 22-23), that claim is also subject to dismissal since there are absent allegations depicting conduct so " severe or pervasive to alter the conditions of the plaintiffs employment and create an objectively hostie Sigh environment." v. Fire 88 AD.3d 981 931 N. Macy s East, Inc. , supra at 745; 83 A.D.3d 1332 921 N. AFL- CIO, 39 AD.3d 846 834 N. Blind, supra v. Grovesteen work Lambert Y.S.2d 884 (2d Dept. 2011); New York State Public Employees Federation 2d 700 (3d Dept. 2011); 2d 312 (2d Dept. 2007). or abusive See also Forrest v. Thompson v. Lamprecht Transp. Jewish Guildfor the at 310- 311. Furher , and even upon most favorably construng the Verified Complaint' s nonconclusory averments (see Reily v. Garden City Union Free School Dist., 89 AD. 3d 1075 , 934 S.2d 204 (2d Dept. 2011)), the twelfth cause of action sounding in intentional inflction '" [* 8] emotional distress must be dismissed since it does not identify conduct "' 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 civilzed communty. 58 N. Y.2d 293 461 N. Home Prods. Corp., OF TORTS g 46(1). v. Fama v. See Howell 306 AD.2d 310 , 760 N. American IntI. Group, v. Marmelstein 81 N. Y.2d New York Post Co., 596 N. 115 Chen 74 AD. 3d v. Reily 1050 , 903 N. See also 11 N. YJd 15, 862 Garden City Union Free School Dist., supra; Stangel v. Zhi Dan S.2d 110 (2d Dept. 2010). Notably, " the ' requirements of the Howell rule are rigorous, and difficult to satisfy. ", v. New York Post, supra PROSSERAN KEETON, TORTS ~ 12 , at 60-61 (5th ed. Cunningham Y.S.2d 614 (2d Dept. 2011); 2d 350 (1993); 2d 534 (2d Dept. 2003). Kehilat New Hempstead: The Rav Aron Jofen Community, Y.S. 2d 311 (2008); American RESTATEMENT (SECOND) quoting S.2d 232 (1983) v. Murphy v. Bernat v. Willams 81 A. 265 AD.2d 370 696 N. Mertz, quoting at 122 3d 679 916 2d 839 (2d Dept. 1999). Finally, while the last sentence ofplaintiffs Memorandum of Law cryptically requests leave to file an Amended Complaint, " as necessary (see Plaintiff s Memorandum of Law in Opposition p. 8), there is no Cross- Motion before the CotJ requesting affirmative relief Khaolaead CPLR g 2215; Thomas v. v. Leisure Video 18 ADJd 2d 637 (2d Dept. 2005); Drifers 219 AD.2d 639 631 N. Y.S.2d 419 (2d Dept. 1995)) and plaintiff has not attached a proposed , Amended Complaint to her papers. 926 N. 820 , 796 N. (e. 2d 434 (1 sl Dept. 2011); AD.3d 512 905 N. Kilkenny See Pollak v. Law Offce ofCushner v. Moore 85 ADJd 578 Garvey, LLP, 76 2d 661 (2d Dept. 2010). Nor has it been shown that whatever amendments plaintiff is referring to would possess the requisite degree of merit. See Pollakv. Moore, sUpra. The Court has considered plaintiff s remaining contentions and concludes that they are [* 9] insufficient to defeat defendants ' motion to dismiss stated portions of the Verified Complaint. Accordingly, it is ORDERED the defendants ' motion pursuant to CPLR g 3211(a)(7) is hereby GRANTED to the extent that: (1) the first cause of action , (2) those portions of the fourh through sixth causes of action which are predicated on racial discrimination and (3) the seventh through twelft causes of action, are dismissed. And it is fuer ORDERED that paragraphs " G" and " H" of the prayer for relief, shall be stricken from the Verified Complaint's " Wherefore " clause. It is furher ordered that the paries shall appear for a Preliminar Conference on March 5, 2012 , at 9: 3 0 a. , at the Preliminar Conference Desk in the lower level of 100 Supreme Cour Drive , Mineola, New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There wil be no adjourents, except by formal application pursuant to 22 NYCRR ~ 125. This constitutes the Decision and Order of the Cour. ENTER: Dated: Mineola, N eW York Januar 19, 2012 ENTERED JAN 23 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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