Giliberti v Silverstein Props., Inc.

Annotate this Case

Download PDF

Giliberti v Silverstein Props., Inc. 2012 NY Slip Op 31433(U) May 23, 2012 Supreme Court, New York County Docket Number: 112138/11 Judge: Manuel J. Mendez 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: - PART 13 ; EZ Justlca CATHERINE GILIBERTI, INDEX NO. MOTION DATE MOTION 8EQ. NO. MOTION CAL. NO. Plaintiff, -against - 04-04.201 2 001 SILVERSTEIN PROPERTIES, INC. and LARRY SILVERSTEIN, Defendantr. The followlng papen, numbered I to Notlce of Motion/ Order to Show Cause Anowering Affldavitm - Exhlblta 7 were read on this motion tolfor -Affldavk - Exhlbita ... crom motion Roplylng Affldavlta w 201 z e NEW YOWK COUNtY CLERK8 OPPIOE Upon a reading of the foregoing cited papers, it is ordered that defendants motion to dismiss the plaintiffs flrst, third, flfth, six, seventh and eight causes of action pursuant to CPLR 5 3211[a][l],[5l& [71, is granted but only to the extent that the third cause of action is severed and dismissed, the remainder of the motion is denied. Cross-Motion: Yes X No Defendants make this motion seeking to dismiss the plaintiffs first, third, fifth, SIX, seventh and eight causes of action pursuant to CPLR 6 3211[a][1], & [TI. The plaintiff has asserted causes of action for discrimination, retaliation and interference based on her age and gender under the human rlghts provisions of the New York City Administrative Code ( NYCHRL ) 55 8-101 et. seq. [Mot. Exh. A]. Defendants also seek to seal and restrict the use of documents annexed to the motion papem. [a To support a claim of discrimination under the NYCHRL, the plaintiff must establish membership in a protected class, that she was quaiifled to hold the position, that she was actively or constructively discharged or suffered other adverae employment action, and that the discharge gives rise to the inference of discrimination. Defendant can have plaintiff s claims dismissed by demonstrating that the plaintiff cannot establish every element of intentional dlscrlmination or by introducing evidence of nondiscriminatory, legitimate reasons to support its employment decisions. if the defendant produces evidence sufflcient to raise a triable issue of fact rebutting the claims of discrimination, the plaintiff can stili prevail upon providing proof that the legitimate reasons were merely a pretext for discrimination (Mitti v. New York State Divislon of Human Rights 100 N.Y. 2d 326,794 N.E.2d 660,763 N.Y.S. 2d S i 8 [2003] and Forrest v. Jewish Guild for the Blind, 3 N.Y. 3d 295,819 N.E. 2d 998,786 N.Y.S. 2d 382 [2004]). The evidence presented by plaintiff can be circumstantial. The NYCHRL has a broader standard and only requires the plaintiff provide proof that age was a motivating factor for adverse employment actions (Bennett v. Health Management Systems, Inc., 92 A.D. 3d 29,936 N.Y.S. 2d 112 [N.Y.A.D. lrt 20111). Dept., [* 2] To prevail on claims of retallatlon, the defendants are requlred to provide proof that the plaintiff has not establlshed every element of her clalms of dlscrlmlnation. Alternatively, the defendants can prove their case by introduclng evldence In the form of affldavlt or documentary evidence of nondlscrlmlnatory, legitimate reasons to support their employment decislons and establish the lack of materlal Issues of fact as to pretext. A plalntlff 8 prima facie case of retallatlon requires evidence of a subjectlve retaliatory motive and that the conduct was reasonably llkely to deter an individual from engaging in protected activity (Bendeck v. NYU Hospitals Center, 77 A.D. 3d 552,909 N.Y.S. 2d 439 [N.Y.A.D. 1 Dept., 20101, Wllllams v. City of New York, 38 A.D. 3d 238,831 N.Y.S. 2d 150 [N.Y.A.D. I Dept, 200TJ and Williams v. New York Clty Houslng Authority, 61 A.D. 3d 62, supra). A clalm of Interference requlres the plalntlff to allege that individuals on behalf of the entity took action to prevent the claimant from obtaining a protected rlght (Montanez v. New York Clty Houslng Authority, 5 A.D. 3d 314,773 N.Y.S. 2d 549 [N.Y.A..D. Imt Dept., 20041). A motion to dismiss pursuant to CPLR $3211[a][l], requlres that the Court construe every fact the plaintiff has alleged as true. The party seeking dismissal must produce documentary evidence that utterly refutes plalntlff s factual allegations, concluslvely establlshlng a defense as a matter of law (See, Leon v. Martinez, 84 N.Y. 2d 83,638 N.E. 2d 511,614 N.Y.S. 2d 972 [IgS4] and AG Captial Fundlng Partners and L.P. v. State Street Bank and Trust Co., 5 N.Y. 3d 582,842 N E 2d 471,808 N.Y.S. 2d 573 [2005]. The documents relied on by the movant must, deflnitively dispose of plalntlff s claim Blonder & Co., Inc. v. Cltlbank, N.A., 28 A.D. 3d 180,808 N.Y.S. 2d 214 [N.Y.A.D. lot Dept., 20081). Plaintiffs third cause of actlon for gender based discrimination asserts that plalntlff s equity interests were forfeited resultlng In a loss of approxlmately $1.6 million dollars, and that her male peers were not subjected to loss of their equity interests without compensation, Defendants seek to dismiss plalntlff s thlrd cause of actlon relying on documentation In the form of Incentive Compensation Agreements ( ICA ) (Mot. Exhs. H K) issued to plalntlffs flve other male colleagues in 2002. They refer to separate partlclpation agreements issued to Michael Levy, SPl s chief flnanclal offlcer (Supp. Aff. Of Brlan Noonan, Exhs. M & N), which they claim had nothing to do with forfeiture but Involved capltal contributlon to SPI. Defendants claim that plaintiff s causes of actlon pertain only to the 2002 ICU agreements and that Michael Levy was not a colleague. - Plalntlff claims the participation agreements had the ultimate result of preventing the full amount forfeiture and were only offered to male colleagues. She also clalms that separate participation agreements were potentlally offered to other males during periods other than 2002. She states that the defendant8 have refused to provide additional documentary evidence requested per discovery demands concernlng other agreements, and restrictlng the agreements to speciflc Indlviduals. Plalntlff has establlshed that the documentation provlded by the defendants as evldence does not utterly refute plalntlff s allegations of discrimination based on separate partlclpation agreements offered to male employees. Pursuant to CPLR 53211[a][B], an action may be dismissed based on a specific claim that, the cause of action may not be maintained because of statute of ,.. [* 3] limitations.... IPursuant to CPLR Q 214 [2], the statute of limitations for an employment dlacrlmination claim Is three years. A cause of action for discrimination accrues from the date the adverse determination was made and communicated to the plaintiff (Cordone v. Wiiens & Baker, 286 A.D. 2d S97,730 N.Y.S. 2d 89 [N.Y.A.D. Imt20011 Dept., and Peterec-Tolinov. Harap, 93 A.D. 3d 577,941 N.Y.S. 2d 92 [N.Y.A.D. I Dept., 20121). A discrimination claim may be extended beyond the statute of limitations based on the paycheck rule, which provides that each check is treated as a aeries of individual wrongs that can extend beyond the three years. The paycheck rule is applied by looking to whether the indlvldual was paid less within the ilmitatlon period than was paid to other individuals outside the llmitations period (Kent v. Papert Cos., 309 A.D. 2d 234, 764 N.Y.S. 2d 676 [N.Y.A.D. 1 Dept., 20031). Defendants seek to dismiss the plalntlff s third cause of action for dlscrlmlnatlon based on the ICA agreements, claiming the action cannot be maintained because the statute of llmitations has run. They also claim plalntlff s discrimination claim began to accrue in December of 2002, when she entered into four ICA agreements that were 8 condition of employment. Defendants state the statute of limitations does not run from the date of forfeiture or resulting consequences from the agreement. Defendants also state that the complaint does not allege disparity in disbursements paid under the ICAs were disproportlonate to amounts paid to males, only that different agreements were offered to male employees. Defendants have asserted a basis to dismiss the third cause of action because the statute of limitations period has run. Plaintiff claims that based on the Federal Ledbetter Act of 2009, and the Equal Employment Opportunity Commission (EEOC) Compliance Manual, application of the paycheck rule can be applied to beneflts or other non-base items like stock options, profit sharing or bonus plans, and should be extended In this action. Plaintiff provides no state or federal case law or actual application of the paycheck rule to compensation agreements and does not establish extraordinary clrcurnstances for equitable relief. A motion to dismiss pursuant to CPLR 53211[a]m, requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pied. A cause of action does not have to be sklllfully prepared but it does have to present facts so that it can be identifled and establish a potentially meritorious claim. Allegations are generally deemed true (Leon v. Martinez, 84 N.Y. 2d 83,614 N.Y.S. 2d 972,638 N.E. 2d 511 [I9941 and Guggenhelmer v. Glnrberg, 43 N.Y. 2d 268,401 N.Y.S. 2d 182, 372 N.E. 2d 17, [1977). A plaintiff alleging employment dlscrimlnatlon under NYCHRL need not plead specific facts but shall give, fair notice of the nature of the claim and its grounds ( Vig v. New York Hairspray Co., 67 A.D. 3d 140, 885 N.Y.S. 2d 74 [N.Y.A.D. lot 20091): Documentary evidence that contradicts the Dept. allegations, or pleadings that are conclusory, will not be preaumed to be true and are a basis for dismissal (Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D. 2d 74,760 N.Y.S. 2d 438 [N.Y.A.D. 1 Dept. ,20031). Defendants seek to dismiss plaintiff 8 first cause of action for age discrimination, for failure to state a cause of action. Plaintiff was employed by Siiversteln Properties inc. ( SPI ) from 1987 to 1991 when she left the company to work at Bank of New York s IDCNY facility. She was re-hired in 1996 and remained with SPi until October 30, 2008, when her employment was terminated. Defendant s claim that when plaintiff was rehired in 1996 she was already a member of the protected class. Roger Sliverstein worked with [* 4] the plaintiff for a combined total of ten years, defendants claim plaintiff did not allege that he ever uttered any derogatory comments or otherwise made statements concerning her age. At the time her employment was terminated in 2008, plaintiff had just turned 66 years old. Roger Sliverstein, defendant Larry Sllversteln a son was 44 years old in 2008, and plaintiffs replacement was approximately 36 years old. Defendants state that plaintiff s claims that Roger Sliverstein preferred to work with a younger male and asked his father to terminate her, or that the defendants acted with discriminatory animus based on age is conciusory, specuiatlve and untrue. They also state that plaintiffs claims concerning Roger Silverstein were solely based on her subJectlvebeliefs and are unsupported by any evidence. Plaintiff does not attempt to refute defendants claims as pretext, or provide any evidence that her claims of age discrimination are based in fact. instead she claims that pursuant to NYCHRL she has adequately stated a legally recognizable cause of action that will be established during discovery. Defendants do not provide an affidavit from Roger Silverstein or anyone with personal knowledge attesting to the lack of age based dlrcrimination. Plaintiff has suficiently established a basis to maintain the first cause of action. Defendants claim that plaintiff cannot maintain the fifth and six causes of action based on retaliation, after she flied a complaint with the EEOC. Defendants state that because COBRA reimbursement was only delayed for approximately three months based on when the American Recovery and Reinvestment Act of 2009 (ARM), went into effect and the plaintiff was reimbursed in full for the COBRA aftennrards there is no basis for retaliation. They also state that the insurance benefits were cancelled in error and fully reinstated therefore, plaintiff cannot establish retaliation. Defendants claim that the temporal proximity of plaintiff s complaint to the EEOC as the causation for retaliation alleged in both causes of action are distant and three months is too long. plaintiff claims that under NYCHRL, retallatory acts do not need to be materially adverse, only reasonably likely to deter a person from engaging in protected activity. She also claims the delay and termination, even if temporary, at four months and seven days respectively, are sufflcient to state a cause of actlon. Defendants have not established a basis to dismiss the fifth and sixth causes of action, which have been stated with sufflcient notice of the claim. Defendants have not provided affidavits or other documentary proof to dismlss the causes of action based on retaliation. Defendants seek to dismiss.the seventh and eighth causes of action for interference claiming that plaintlff has not provided a basis for the allegations that defendant Larry Silverstein interfered with Ms. Hudnell, the defendant s Human Resource person, in providing both the COBRA and insurance benefits. Defendant claims that plaintiff has overlooked the possibility that rather than interference the delays were caused by innocent oversight or error. Plaintiff has stated a basis for her claims of interference based on retaliatory actions by Larry Silverstein concerning other employees and Ms. Hudnell s knowledge before the three months delay of the law and her payments. Defendants have not provided proof including affldavits that the delays were caused by oversight or errror. [* 5] - The sealing of records is generally not permitted by the court, even when both parties to the proceeding make the request (Matter of Hoffman, 284 A.D. 2d 92,727 N.Y.S. 2d 84 [N.Y.A.D. lot 20011 and Liapakis v. Sullivan,, 290 A.D. 2d 393,736 Dept. N.Y.S. 2d 675 [N.Y.A.D. 1 Dept. 20021). The right of the public to access court proceedlngs takes precedence and the confldentlaiity obtained by sealing of records requires a narrowly tailored yet compelling objective that outweighs public interest (Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D. 2d 1, 711 N.Y.S. 2d 419 [N.Y.A.D, lot 20001). There is no speciflc definition of good cause, It Is based Dept., on the Court s discretion (Applehead Pictures L.L.C. v. Pereiman, 80 A.D. 3d 181,913 N.Y.S. 2d 165 [N.Y.A.D. lot 20101). A motion to seal records, accompanied solely Dept. by the afflrmatlon of an attorney who did not purport to have any personal knowledge of the documents, with no affldavits produced by any of the authors of the documents, or participants In their events was found to not present evidence on the record as to why the records were so confldentiai or sensitive1 that they should be sealed. Failure to address speciflc documents sought to be sealed is fafai to the request (Mosaiien v. Berenson, 76 A.D. 3d 345,905 N.Y.S. 2d 575 [N.Y.A.D. lot 20101). Dept. The determination of whether discovery should be provided lies within the Court s discretlon (Town of Southampton v. Saiten, 186 A.D. 2d 796, 589 N.Y.S. 2d 355 [N.Y.A.D. 2 d Dept., 19921). The court has broad discretion in supervising disclosure and to grant a protective order pursuant to CPLR 53103 (148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D. 3d 486,878 N.Y.S. 2d 727 [N.Y.A.D. lmt20091). Dept., Defendants have not provided an affldavit of the defendant or an individual with knowledge on behalf of the defendants or any of the participants involved In the ICA s they claim are confldentiai. Defendants rely solely on the affirmation of their attorney. Although defendants claim that the lCAs are business records, not all business records are confidential. Defendants have not established a compelling objective that outweigha public Intereet. Defendant application for sealing of the records alternatively for a protective order is denied. Accordingly, it is ORDERED that defendants motion to dismiss plaintiff 8 flrst, third, fifth, six, seventh and elght causes of action pursuant to CPLR 5 3211[a][l],[5] & m, is granted, but only to the extent that the third cause of action is severed and dbmissed, and it is further, ORDERED that the remainder of the motion is denied. FILED M 29 2012 Y This constitutes the decision and order of thia court. ENTER: NEW YORK COUNTY CLERK S OFFICE M MANUEL J. hENDEZ, Dated: May 23,2012 Jms-cm W U E L J. M E N W J.S.C. 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Check If appropriate: 0 DO NOT POST 0 REFERENCE Check one:

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.