Trujillo v Transperfect Global, Inc.

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Trujillo v Transperfect Global, Inc. 2017 NY Slip Op 30369(U) February 27, 2017 Supreme Court, New York County Docket Number: 654442/2016 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 1] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 45 . ------------------------------------------------------------------)( ROY TRUJILLO, Plaintiff, DECISION AND ORDER -against- Index No. 654442/2016 TRANSPERFECT GLOBAL, INC., TRANSPERFECT TRANSLATIONS INTERNATIONAL, INC. and ,. ELIZABETH EL TING, Mot. Seq. 001 Defendants. ----------------------------------------------------~-------------)( HON. ANIL C. SINGH, J.: In this action for, inter alia, unpaid compensation, breach of contract, intentional infliction of emotional distress and violation of labor law §195(1 ), plaintiff Roy Trujillo ("plaintiff'' or "Trujillo") moves for a judgment of no less than $5 million against Transperfect Global, Inc. ("Transperfect"), Transperfect Translations International, Inc. ("Transperfect International") and Elizabeth Elting I ("Elting" r and together with Transpe1fect and Transperfect International, "defendants"). Defendants' move for an order dismissing all of plaintiffs' counts pending I against them pursuant to CPLR 321 I(a)(l} on the basis of documentary evidence l and 321 I(a)(7) for failure to state a claim (mot. seq. 001). Plaintiff opposes. Facts 1 «' 2 of 19 t I [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 2] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 Transperfect is the parent organization ~f Transperfect International and is the largest privately owned languag e services firm in the world. Complaint ("Compl. ") . . lf6. Transperfect's founders, princi p al shareholders and co-CEO' s are Eltmg and : . · · . Philip Shawe ("Shawe").· Id. lf9. Plaintiff was an acquamtance o f both Eltmg and \ · Shawe and in 2000 became th e CEO and Sedretary of Trans1at10ns.com, Inc ., which .,·· eventually merged into Transper£ec. -· i-f 15'. Since this time, Trujillo has served as t Id the Chief Operating Officer an d Secretary of Transperfect and is currently . responsible for overseeing all of Transperfect's operations, except for sales and various other aspects of the business including production and human resources. Id. irir15-17. " Allegedly, for the better part of 2013, Trujillo had attempted to meet with Shawe and Elting regarding his compensapon but was not able due to continuing disagreements among Shawe and Elting. Id: if39; see generally, id. ifif21-38. In June 2013, Trujillo allegedly met with Shawe and Elting and agreed to a minimum salary ~nd of $250,000 with a minimum of $25,000 of year payment for 2013 and any subsequent year that he was employed with Transperfect, a $7,000 perfonnance '· bonus for 2013, an annual raise of 7.5% per annum, and full appreciation value for phantom stock. Id. if41. ' Phantom stock is an alleged incentive plan in which plaintiff would receive payment for any increase in the value of the shares above the price at the time of the 2 3 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 3] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 prior distributions. Id. i142-43. Plaint!"ff a11.ege dl y received 528 shares with an incremental value of$158,131.08. Id. ir44. The agreement contains a set of handw~itten notes that plaintiff alleges created t? present. Specifically, the handwritten a binding employment contract from 2013 notes state that the "2013 Expected Comp Value [is] $257K." Fasman Aff. Ex. 3. The alleged agreement also contains notati6ns of "250K" circled by an arrow and two sets of calculations including "225 + 7 ::5 = 232.5 +25" and "225 + 10 = 235". Id. In the lower portion of the document there is a box that contains the word "+ Phantom" as well as other notations around:the box including "7.5". Id. In December 2013, Elting allegedly placed Trujillo on notice that ifhe did not consent to various demands that dealt with ., the inner workings of the company, he would not be paid and his staff would suffer. In the beginning of 2014, plaintiff did .1 not receive his year-end payment. Id. if49. After numerous inquiries about his salary, Elting allegedly berated plaintiff on numerous occasions, threatened his job and career and stated that she did not have to pay Trujillo at all. Id. ifif51-52. ' Additionally, plaintiff alleges that he was the victim of multiple retaliatory acts. Id. 1 if54. Although plaintiff alleges that Elting fake fired him on multiple occasions, plaintiff continues to work for Transperfect. See id. ifif55-56, 66, 69-70. 1 Specifically, plaintiff alleges that Elting directed plaintiffs direct reports that he had no authority over them and was not their supervisor; Elting publically pretended to fire Elting and sent an email to a large distribution list stating that Trujillo had been terminated; had HR escort plaintiff out of the building; threatened to call the police and have plaintiff forcibly removed from the building in front of staff; publicapy berated plaintiff; removed money from the accounts 3 4 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 4] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 Based on these allegations, plaintiff se~ks damages for unpaid compensation (first cause of action), violation of labor law§ ;195(1) (second cause of action), breach of contract (third cause of action), and intentional infliction of emotional distress (fourth cause of action). Defendants' oppose~ and seek to dismiss based upon CPLR 321 l(a)(l) and (a)(7). Analysis Legal Standard . · on the ground that defenses are founded upon On a motion to d1sm1ss documentary evidence pursuant to CPLR 321l(a)(l), the evidence must be unambiguous, authentic, and undeniable. C~LR 321 l(a)(l); Fountanetta v. Doe, 73 A.D.3d 78 (2d Dept 2010). "To succeed on a [CPLR 321 l(a)(l)] motion ... a I defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the plaintiffs claim." Ozdemir v. Caithness Corp., 285 A.D.2d 961, 963 (2d Dept 2001), leave to appeal denied 97 N.Y.2d 605. Alternatively, "documentary evidence [must] utterly refute plaintiffs factual allegations, conclusively establishing a :1 defense as a matter oflaw." Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326 (2002). of :mployees w~o were plaintiff's direct reports in order to einbarrass plaintiff; falsely advised a Ford dealership that plamt1f~ w~s trymg t? purc~a~e a vehicle for the company with a stolen check; falsely advised senior staff members that plamttff was go~n~ to Jat! f?r fraud; refu~ed to pay plaintiff any reimbursements; reassigned projects to other employees; and proh1b1ted plamttfffrom speakmg with Elting directly or properly staffing his department. Id. if54(a)- (p). 4, 5 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 5] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 On a motion to dismiss a complaint for failure to state a cause of action :i pursuant to CPLR 321 l(a)(7), all factual all~gations must be accepted as truthful, the complaint must be construed in the light most favorable to plaintiffs, and ' plaintiffs must be given the benefit of all reasonable inferences. Allianz Underwriters Ins. Co. v. Landmark Ins. Co.~ 13 A.D.3d 172, 174 (1st Dept 2004). I; The court determines only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 8~, 87-88 (1994). The court must deny a motion to dismiss, "if, from the pleading's four comers, factual allegations are discerned which, take,~ together, manifest any cause of action cognizable at law." 511West232nd Owners 'Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002). "[N]evertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or contradicted by documentary evidence, are not entitled to such consideration." Quatrochi v. Citibank, N.A., 210 A.D.2d 53, 53 (1st Dept 1994) (internal citadon omitted). Plaintiffs Cause of Action for Unpaid Compensation Defendants' motion to dismiss plai~tiff s first cause of action for unpaid compensation is granted. Plaintiff makes a claim for unpaid compensation against 'I TransPerfect under the Fair Labor Standards Act ("FLSA") and New York Labor ,. Law ("NYLL"). New York has explicitly adopted the provisions and exemptions of the FLSA. See NYCRR §142-2.2; Clougher v. Home Depot U.S.A., Inc., 696 5 i 6 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 6] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 F.Supp. 2 d 285, 289 (S.D.N.Y. 2010). NYL~ only applies to "clerical and other workers" and excludes "any person employed in a bona fide executive, administrative or professional capacity whos~ earnings are in excess of nine hundred dollars a week." NYLL §19l(d); §190(7); see also Eden v. St. Luke's-Roosevelt Hosp. Ctr., 96 A.D.3d 614, 615 (1st Dept 2012) ("As a professional earning more than $900 a week ... plaintiff is expressly excluded from the protections of Labor Law §191."). Plaintiff earns well in excess of $900 per week. See Compl. i-fi-f41, 5 5 (alleging that plaintiff was to earn a minimum of $250,000 for 2013 without incentives). Additionally, plaintiff is excluded from making a claim under NYLL § 191 as he I serves in an executive capacity at Transperfect. See Compl. i-fi-115-17 (alleging that 1 plaintiff is responsible for the oversight of Tra.nsperfect's operations, directly oversees more than 100 employees, and currently acts as the Chief Operating Officer and Secretary of Transperfect). For these reasons, plaintiff is precluded from making a claim under NYLL Ii § 191 2 and defendants' motion to dismiss pl aintiff s first cause of action for unpaid 1 ii compensation is granted without leave to rep lead. 3 2 " Additio~ally, plaintiff has failed to state a cause of action under the FLSA, which only deals with minimum wages and overtime payments. See Nakahata v. N.Y.-Presby. Health Sys., 723 F.3d 192 (2d Cir. 2013); Lundy v. Catholic H~a!th Sys. Of Long Is., 711 F.3d 106 (2d Cir. 2013). As discussed, supra, plaintiff is not entitled to overtime or mm1mum wages and therefore FLSA is inapplicable. ; . As part of ~ts first cause of action, plaintiff seeks to recover for alleged unpaid compensation. To the extent that this cause of act10n relates to the alleged agreement, it is subsumed and discussed as part of the breach of contract claim, infra. 3 6 7 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 7] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 ii Plaintiffs Cause of Action for Violation of Labor Law §195(1) Defendants, motion to dismiss plaintiffs second cause of action for violation of labor.law §195(1) is granted. NYLL §195(1) (whose amendment is also referred :I to as the Wage Theft Prevention Act ("WTPA")) requires an employer to provide ! his or her employees at the time of hiring a hotice containing various wage related 1! and other information. See NYLL, § 195(1 )~ This requirement went into effect on April 9, 2011. 1! Although plaintiff was hired in 2000, before the applicability of the WTP A, 1 !! he argues that section 195 should apply retroactively. Although not binding, this court finds the holdings from the Second Circuit and Southern District of New York i persuasive regarding the inability of a party,'. to claim retroactivity for a claim under section 195. See Inclan v. New York Hospitality Group, Inc., 95 F.Supp.3d 490, 501 (S.D.N.Y. 2015) ("the failure ... to provide ... notice at the time of hiring cannot ; support a claim under the WTPA, as the Second Circuit has held that the WTPA does not apply retroactively"); Gold v. N.Y.Life Ins. Co., 730 F.3d 137, 143-44 (2d ,, Cir. 2013) (finding no support for retroacti:vity either in the text or the legislative history). This court finds plaintiffs additfonal arguments regarding retroactivity unpersuasive. Therefore, defendants' motion to dismiss plaintiffs second cause of action for violation ofNYLL §195(1) is granted with~ut leave to replead. 7 ' 8 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 8] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 Plaintiff's Cause of Action for Breach of Contract Defendants, motion to dismiss plaintiff's third cause of action for breach of contract is granted in part. N.Y. General Obligations Law §5-70,1(1) states that .j Every agreement, promise or. unde~.ak~ng is void, u?less it or some note or memorandum thereof be m wntmg, and subscnbed by the party.to. be charged therewith, or by his lawful agent, if such agreei:ne?t, promise or undertaking ... [b ]y its terms is not to be performed w1thm one year from the making thereof or the performance of which is not to be completed before the end of a lifetim~. Id· see also _ , _ _ Parma Tile Mosaic & Marble Co., Inc. v. Estate of Short, 87 N.Y.2d 524 . (1996). Here, the document is not subscribed'; by the party to be charged. See Sheehy v. Clifford Chance Rogers & Wells LLP, 3 N.Y.3d 554, 559-60 (2004) (finding that an agreement is void if it is not i.n writing an1d "subscribed by the party to be charged i! i therewith."); Rosenfeld v. Schreiber, 139 !:A.D.3d 609 (1st Dept 2016) (where a written agreement is among other. things, isigned by the parties to be charged, it ,1 satisfies the statute of frauds at the motion ·to dismiss stage of litigation); Nemelka " v. Questor Management Co., LLC, 40 A.D;~3d 505, 506 (1st Dept 2007) (unsigned documents · do not satisfy the statute 9f frauds); Saivest Empreendimento~ Imobiliarios E. Participacoes, Ltda v. Elman Invs., Inc., 117 A.D.3d 447, 448-49 (1st Dept 2014) (finding that the General· Obligations Law requires that the . agreement be subscribed by the party to be charged.). Therefore,. the agreement is void. 8 9 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 9] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 The court's inquiry does not end here. ,'~In order to remove an agreement from the application of the statute of frauds, both ,'parties must be able to complete their performance of the contract within one year.'; Sheehy, 3 N.Y.3d at 560 (2004). "The statute is narrowly construed and applied o~ly to contracts which, by their terms, have absolutely no possibility of full performance within one year." Marini v. D'Apolito, 162 A.D.2d 391, 393 (1st Depti!1990); see also D&N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y ..2d 449 (19S4); Kermanshah Oriental Rugs, Inc. v. Latefi, 51A.D.3d562 (1st Dept 2008). At this stage of the litigation, plainti~f has adequately pled a cause of action ·for breach of contract as it relates to the ';employment agreement for 2013. The ii document plaintiff relies upon states "20Ii3 expected comp value, $257K." See .,; Fasman Aff., Ex. 3. Taking the allegations in the complaint as true, as this court must on a motion to dismiss, this adequately pleads the requirements of an employment .I contract. See Elite Technology N.Y. Inc. v.Thomas, 70 A.D.3d 506, 508 (1st Dept 2010); Durso v. Baisch, 37 A.D.3d 646 (2d Dept 2007). Looking to the four comers of the agreement, it appears only to cover pl~intiff s employment for 2013. See Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998) ("As long as the agreement may be 'fairly and reasonably interpreted' such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occ~r during that time frame"); Stucklen v. 10 of 19 9 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 10] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 . . '.: Kabro Assocs., 795 N.Y.S.2 d 256 , 257 (2 d Dept 2005) (Generally when an agreement is terminable at will, it is not sub~ect to the statute of frauds, as it could be completed within one year); Devany v. Br6ckway Development, LLC, 72 A.D.3d 1008, 1008-09 (1st Dept 2010) ("Where an,iemployment agreement is silent as to duration, absent a limitation on the employer~'~ right to discharge the employee, there is a rebuttable presumption of an at-will employment relationship."). · !I The writing only states the total co1~pensation value for 2013, which is l' $257,000. See Fasman Aff., Ex._ 3. The agreement is silent as to whether Trujillo's employment is at-will or guaranteed for the.;entire year. Id. Absent any language to the contrary, this court must presume an'.· at-will employment relationship. See Devany, 72 A.D.3d at 1008-09; Goldman v. White Plains Center for Nursing Care, LLC, 11 N.Y.3d 173, 177 (2008) (finding' that in New York there is the "well. ~ established rule that absent an agreement establishing a fixed duration, an employment relationship is presumed to be· a hiring at will, terminable at any time by either party.") (internal citations omit~ed). Because Trujillo was an at-will employee, the agreement, which only cover~ Trujillo's employment for 2013, is not subject to the statute· of frauds as he can be t'~rminated within the year. See Cron, 91 N.Y.2d at 366; Stucklen, 795 N.Y.S.2d at 257; N.Y. Gen. Ob. Law §5-701(1). Therefore, the statute of frauds is not a bar to this cause of action because by its 10 11 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 11] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 terms, the agreement is fully performable within one year. See Sheehy, 3 N.Y.3d at 560. As to any of the alleged years beyond.: 2013, the pleadings are insufficient to make a determination as to whether there is an oral at will employment agreement outside the statute of frauds. Plaintiff's coupsel argues in his brief that the parties ., had an oral at will employment agreement. See Plaintiff's Memo. in Opp., pp. 6-8. However, plaintiff has not submitted an affidavit. See Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633 (1976). Nor are there ahy allegations in the verified complaint as to an oral at will employment agreement:. Therefore, the court will not consider these arguments. However, plaintiff is grant.ed leave to replead. Defendants' motion to dismiss plaintiff's cause of action related to phantom stock is granted. Since the writing .plaintiff relies on is not subscribed, the agreement is void. •I See supra, at pp. 8-9. Nor by its terms can:the agreement be consummated within one year of its making. This court finds t~e Southern District's reasoning in KJ Roberts & Co. Inc. v. MDC Partners Inc., 2014 WL 1013828 (S.D.N.Y. Mar.14, 'I 2014 ), persuasive.- In KJ, the parties agreed that upon termination of the agreement, plaintiff would receive further capital payments based on the number of years he worked at the company before being termihated. Id. at *2 (for example, in KJ, if plaintiff worked with the company for one y~ar, he would be entitled to an additional 1! 11 12 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 12] INDEX NO. 654442/2016 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/27/2017 eighteen months of compensation). The court held that because plaintiff would be entitled to payments after his t~rmination, ~ven if he was terminated within a year, the agreement could not have conceivably been completed within a year and was therefore subject to the statute of frauds. Id. ~t *5-6. The facts ofKJ are analogous to those, presented here. Trujillo alleges that he is owed the value of certain phantom stock ~hat he was promised in the agreement. ' See Compl. if41. Plaintiff also alleges that .the parties agreed that plaintiff would maintain his shares of phantom stock and that he would receive payment-for any increase in the value of the shares, which is hot alleged to be tied in any way to his employment status at 'f.ransperfect. Id. a~ ifif42-43. Defendants' obligations to Trujillo would necessarily extend beyond his time of employment. Therefore, the i,l " • ,, agreement could not be completed by both parties within one year. See Cron, 91 ' N.Y.2d at 371 (finding that the statute of frauds does not apply when compensation could be earned and fixed within a year.). Plaintiffs reliance upon Stucklen v. :iKabro Associates, 18 A.D.3d 461 (2d Dept 2005) and Arias-Zeballos v. Tan, 2008 U.S. Dist. LEXIS 25852 (S.D.N.Y. Mar. 28, 2008), is without merit. Both of these cases rely upon the general proposition that "the exercise of the right of termination associated with a hiring at will is a means of completion of the contract", which will bar the application of the statute of frauds as the employment can be t~rminated within one year. Stucklen, 18 12 13 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 13] NYSCEF DOC. NO. 20 I / 1 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 A.D.3d at 256; see also Tan, at *12-13 (findill;g that an oral contract for employment I ' is not barred by the statute of frauds where,'.the employment is at will and can be terminated within one year). These cases are readily distinguishabl~. In Tan, the underlying cause of action dealt with a written employment agreement ~hat was allegedly breached when T~n's assistant was terminated. Tan, at *3-4. There was no agreement for additional compensation beyond. termination and th,~re was no agreement for indefinite payments of any kind after termination. Id.· The only claim was for compensat_ion owed during the time that the assistant worked for Tan ..Id. Similarly, in Stucklen, the only issue presente~. was whether abs~nt a fixed duration in an employment agreement, the statute of frauds will act as a bar to enforcement of an alleged oral agreement. 18 A.D.3d at 461-62. The court in Stucklen did not address whether alleged post-termination agreements regarding compensation are subject to the statute of frauds. As both of these cases are ~ilent as to whether an agreement to pay stock incentives indefinitely is subject to the statute of frauds, they are inapplicable. Here, the agreement to pay Trujillo for any increase in value of the stocks under the phantom stock agreement could .n9t have been completed within one year even if Trujillo was terminated, as Trujillo would be owed the increase in the value of his stock after termination for an indetenl1Jinate amount of time. See Compl. ifif4 l44. In KJ, the court explicitly states that wI?.ere an agreement cannot be completed 13 14 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 14] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 within one year due to future payments extenaing beyond that year, the reasoning in cases such as Stucklen is inapplicable. See KJ, at *6. Therefore, defendants' motion to dismiss plaintiffs claim for breach of contract as it relates to phantom stock is granted without leave to replead. Plaintiffs Cause of Action for Intentional Infliction of Emotional Distress Defendants' motion to dismiss plaintiffs fourth cause of action for intentional infliction of emotional distress is granted. A cause of action alleging intentional I . I ' infliction of emotional distress "has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell \r. New York Post Co., 81 N.Y.2d 115, 121 (1993} "The first element - outrageous conduct - serves the dual function of filtering out petty and trivial complaints th~t do not belong in court, and assuring that plaintiffs claim of severe emotional distress is genuine." Id. at 121. The element of outrageous conduct· is "rigorous and difficult to satisfy." Prosser and Keaton, Torts §12 at 61 (5th ed.'; 1984). Therefore, liability will only be found where the "conduct has been so outrageous in character, and so extreme in ' ' degree, as to go beyond all possible boun.ds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983); see also Brown v. Sears Roebuck 14 15 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 15] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 & Co., 297 A.D.2d 205, 212 (1st Dept 2002);' Taggart v. Costabile, 131 A.D.3d 243, 250 (2d Dept 2015); Marmelstein v. Kehillai'.New Hempstead, 11N.Y.3d15, 22-23 (2008). "The outrageousness element is the one most susceptible to determination as a matter of law." Howell, 81 N.Y.2d at 121; see also Chanko v. American Broadcasting Companies, Inc., 27 N.Y.3d 46, 57 (2016) In the employment .context, courts have consistently held that behaviors similar to the ones alleged by plaintiff do not meet the outrageous conduct threshold , required. See Krawtchuk v. Banco Do Brasil, S.A., 183 A.D.2d 484 (1st Dept 1992) ij . (terminating an at-will bank employee, characterizing her threat to remove an,d publish bank records as theft and extortion, ~equiring her to close her employee bank ' account, and refusing to give her a favorable letter of reference do not rise to the level of extreme and outrageous conduct); L,apidus v. New York City Chapter of the New York State Ass 'n for Regarded Children, Inc., 118 A.D.2d 122 (1st Dept 1986) (discharging an employee during the workday, directing him not to return to his office, and disclosing the fact of discharge to other employees does not give rise to a cause of action for intentional infliction ~f emotional distress); Arrington v. Liz ,1 Claiborne, Inc., 260 A.D.2d 267 (1st Dept, 1999) (questioning plaintiffs about the falsification of time sheets and escorting nlaintiffs to their desks to remove their personal items does not satisfy the requirement of outrageous conduct). 15 16 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 16] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 '\ Even conduct such as using vulgar epithets to refer to an employee, permitting crude and offensive statements of a sexu'ally derisive nature to occur in the workplace and subjecting an employee to'' unwanted sexual advances; physical contact and verbal harassment does not give.rise to a cause of action for intentional infliction of emotional distress. See Dillon v. New York, 261 A.D.2d 34 (1st Dept 1999); Shea v. Cornell University, 192 A:D.2d 857 (3d Dept 1993); Zephir v. Inemer, 305 A.D.2d 170 (1st Dept 2003). Plaintiff's reliance on Collins v. Willcox Inc., 158 Misc.2d 54 (Sup. Ct. N.Y. Cnty. 1992), is misguided. In Collins, the court characterized the employer's I unwanted sexual advances as possibly bei'ng considered outrageous particularly I because it was directed at a married person i,n an attempt to induce violation of that person's marital vows and trust. Id. at 57. This is particularly the case where the employer was aware of the employees' 111arital state at the time of the alleged harassment. Id. Here, there is no claim of continuous sexual harassment, rather the plaintiff seeks to apply the Collins court's reasoning as it relates to the aggregation of behavior. However, this reasoning was in addition to the particular facts of that case including the serial sexual harassment of amarried woman whom the employer knew to be married. Here, plaintiff was an ~mployee who is not claiming any form of continuing sexual harassment, but rather undesirable working conditions. The 17 of 19 16 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 17] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 ,j facts here are so distinguishable as to render the reasoning in Collins inapplicable in this context. Plaintiff has failed to state conduct that is so outrageous and beyond all " possible bounds of decency as to be actionable for a claim of intentional infliction of emotional distress. Defendants' and Elting in particular has certainly made ;j plaintiffs job difficult by undermining his authority, pretending to fire him, berating him in front of other employees and escorting him from the building. Elting has also disparaged plaintiffs reputation through var~'.ous actions taken within the office such as telling others that he was going to jail fpr fraud and by threatening to call the police. However, these actions have already been held by the courts to not be actionable for a cause of action for intention;al infliction of emotional distress, even when taken in the aggregate. Therefore, defendants' motion to disll}iss plaintiffs fourth cause of action for· intentional infliction of emotional distress isi, granted. 1 Accordingly, it is hereby ORDERED that defendants' motion to dismiss plaintiffs first cause of action for unpaid compensation is granted without leave to replead; andcit is further ORDERED that defendants' motion to dismiss plaintiffs second cause of action for violation of labor law § 195(1) is granted without leave to replead; and it is further 17 18 of 19 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:45 AM 18] NYSCEF DOC. NO. 20 INDEX NO. 654442/2016 RECEIVED NYSCEF: 02/27/2017 ORDERED that defendants' motion to dismiss plaintiffs third cause of action ' for breach of contract is granted In part with ~eave to replead; and it is further ORDERED that defendants' motion to dismiss plaintiffs fourth cause of action for intentional infliction of emotional distress is granted without leave to rep lead. ~~-)lg_h Date: February 27, 2017 New York, New York _ __ 18 19 of 19

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