Delucia v Abbondandolo
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Delucia v Abbondandolo 2013 NY Slip Op 34022(U) March 11, 2013 Supreme Court, Nassau County Docket Number: 005793-10 Judge: Arthur M. Diamond 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. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTI{I]R M. DIAMOND Justice Supreme Court TRIAL PART: 10 GINADELUCIA, NASSAU COUNTY Plaintiff, INDEX NO: 005793-10 -against- MOTION SEQ. NO:2 VITO ABBONDA,NDOLO, CPA, P.C., A}ID VITO ABBONDANDOLO, INDI}TDUALLY, SUBMIT DATEII/2113 Defendants. The following papers having been read on this motion: Notice of Motion........,,.....,......,...........,,1 Memorandum of Law,,....,..,...,..,,,..,..,..2 .............3 ..,..........4 Opposition...,.,, Rep1y................ The defendants, Vito Abbondandolo, CPA, P.C. and Vito Abbondandolo, Individually [hereinafter the Abbondandolo defendants], move pursuant to CPLR $3212, for an order granting summary judgment dismissing the plaintiff s complaint (Sequence #002). InNovember of 1999, the plaintiffwas hired by St. Luke's Episcopal Church [hereinafter St. Luke'sl as a part-time bookkeeper (see DeVito Aflirmation in Support at Exh. D at pp. 36,37,38). 7n the interim, on or about October 2,2000, the plaintiff procured a second part-time job accountant with the Abbondandolo defendants (id. at as an Aatl4; Exh. D at pp. 39,40,42). During the cowse of this concurrent employment, the plaintiffwas considered a 1099 independent contractor (id at Exh. D at pp. 38,40,42). On July 21, 2009, the plaintiffwas laid off from her position at St. Luke's due to budgetary constraints and as a consequence thereof filed a claim for unemplolment benefits on August 3, 2009 Subsequent to the (id atpp. 67,75,76). plaintifffiling for unemployment, the defendants herein received various notifications from the New York State Department of Labor [hereinafter NYSDOL], including a Request for Employment and Wage Data, in response to which Mr. Abbondandolo informed the [* 2] NYSDOL that the plaintiff was "paid via l099"and was still employed in his office (see DeVito Affirmation in Support aI n 64 Exh. D). Thereafter, by letter dated, September 22, 2009, the Unemplol,rnent Insurance Division of the NYSDOL requested additional information to determine whether the plaintiff "was actually an employee oran independent conftactor"(rd at 'lf'1f65,68; Exh. D). By letter dated, October 16,2009, the NYSDOL informed Mr. Abbondandolo that after reviewing all relevant documentation it had determined that the plaintiffwas an "employee" and as a result, he would be required "to submit amended quarterly reports and pay contributions on the eamings of Gina Delucia and all other persons similarly employed beginning with at least the first quarter of2006" (id at Exh. D). Several weeks later, between November I 7 and December 7 ,2009, the plaintiff received a series of emails from Mr. Abbondandolo, the first three of which informed her that her hours would be reduced and the last of which informed her that for "economic reasons" her employment had been terminated (id at Exh. A at tf 12;Exh. D at pp. 149,150,151,15 4-157,161). On March23, 2010, the plaintiffcommenced the underlying action alleging that the reduction in her hours, as well as her ultimate termination collectively constitr.rte impermissible retaliation under Labor Law $215 and that said actions were deliberately undertaken by the defendants as a result ofher having instituted a claim for unemployment benefits (td. Exh. A at fl1T6,12,14,14). The defendants' within application for summary judgment thereafter ensued and is determined as set forth hereinafter. In support ofthe instant application, counsel contends that given the plaintiff s status as an at will employee, the defendants were free to terminate her employment at any time and for any reason (see DeVito Affirmation in Support at fl1188,89). Counsel further argues that as the plaintiff never made any complaints to a govemmental agency that Mr. Abbondandolo violated specific provisions ofthe Labor Law coupled with the plaintiff s failure to adequately allege inpreciselywhat manner Mr. Abbondandolo engaged in retaliatory conduct, the within action must be dismissed (id. at flfl 95,100-107,109,110, 119). In addition to the foregoing, counsel asserts that the plaintiffs termination was strictly based upon economic necessity and was not in any respect pretextual (id. at flfl121-129). Finally, counsel contends that no liabilitymaybe assessed against Mr. Abbondandolo in his individual capacity (id. attf138). [* 3] In opposing the defendants' application, counsel for the plaintiffargues, inter alia, that given the defendants' violations oflabor Law $215, the plaintiffs at will status is ilrelevant and does not serve as a.bar to maintaining the underlying action (see Plaintiff s Memorandum of Law at p. 4). Counsel additionally argues that in consideration of the sharply contrasting deposition testimony adduced from the plaintiff and Mr. Abbondandolo with respect to the circumstances precipitating the plaintiff's termination, summary judgment is not appropriate (see Plaintiffs Memorandum of Law at pp. 1,3,5,6, 8). Counsel further asserts that contrary to the axguments set forth by the defendants' attomey, the plain language of Labor Law $215 explicitly allows for liability against individuals who have violated the provisions thereof (id at p.9). It is well settled that a motion for summary judgment is a drastic remedy which should only be granted upon a showing by the moving party of an absence of material issues of facl (Andre ,'t Pomeroy,35 NY2d 361 U9741). When entertaining such an application, the function of the Court is not to determine either issues of fact or credibility, but rather to determine whether such issues indeed exist (Dykeman v Heht, 52 AD3d 767 [2d Dept 2008]). Further, inasmuch as surnmary judgment is the procedural equivalent ofa trial it "must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable " (id, Rivers tt Birnbaum,l02 AD3d26 [2d Dept 2012]). Within the particular context of a motion for summary judgment seeking dismissal of an action based upon retaliation, a defendant can demonstrate prima facie entitlement to relief by establishing that any "adverse employment action" taken in relation to the plaintifflemployee was done for reasons having no corurection to the plaintiff having engaged in a protected activity (Balsamo v Savin Corp.,6l AD3d 622 [2dDept2009l. As noted above, the plaintiffs within complaint charges that the defendants engaged in retaliatory conduct in violation ofLabor Law $215(l)(a), the language of which provides, in part, that "[n]o employer t t * shall discharge, thrcaten, penalize, or in any other manner discriminate or retaliate against any employee * + + (iii) because such employee has caused to be instituted tt*a proceeding under or related to this chapter, r* )t :t.' As €mployed in the statute, the phrase "this chapter" specifically "refers to any provision of the Labor Law" (Kelly v Xerox Corporation,256 AD2d 311 [2d Dept 1998]). [* 4] In order to successfully establish a prima facie case of retaliation, it is incumbent upon the plaintiff to establish the following: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action" (Straebler v NBC Uniyersal, Inc.,2013 WL 541524 ISDNY 2013] rd quotingJute v Hamilton Sundstrand Corp.,420 F3d 166 [2d Cir 2005] at 173). Of particular relevance herein, it has been held that the act of "filing for unemployrnent benefits is a proceeding under chapter 3l ofthe Labor Law, * * * and therefore constitutes protected activity" within the puwiew of the statfie (Liverpool v Con-lVay, Inc.,2010 WL 4791697 IED NY 2010]). Moreover, the termination of employment has been held to be an "adverse employment action" under the provisions oflabor Law $ 215 (Higueros v New York State Catholic Health Plan, 526 F Supp 2d 342 [ED NY 2007]). As to the separate and distinct issue ofcausation between engaging in protected activity and a subsequent adverse emplo;,ment action, a plaintiff can establish a causal relationship suggestive ofretaliation by demonstrating the protected activity in which he or she has engaged was undertaken l9 [2d Cir 2009]at129; Gordon v New York City Bd. of Education, 232F3d 111 [2d Cir 2000]). In determining the at a point "close in time to the adverse action" (Espinal v Goord, 558 F3d I defendants' instant application, the Court has carefully reviewed the record and upon such review finds that the defendants have failed to demonstrate the absence of material issues of fact with respect to the circumstances iurrounding the plaintiff s termination and whether same was or was not improperly based upon the plaintiff having filed for unemploymenl (Balsamo v Savin Corp., supra).ln moving for summary judgment, counsel for the defendants plaintiff s termination asserts that the basis for the was due solely and exclusivelyto economic necessity and in so asserting relies principally upon the deposition testimony of Mr. Abbondandolo and the numerous documents annexed thereto. However, a review of the defendant's testimony, as well as that ofthe plaintiff, reveals factual questions sunounding the circumstances leading up to the plaintilfs termination, together with attendant issues ofcredibility, the resolution ofwhich is fot the tder of fact (Dykeman v Heht, the as supra). With respect to the documents proffered by the defendants, same include a copy of plaintiff s resume, well as a a series of 1099 forms from several of the plaintiff s prior employers, a W-2, lengthy recitation ofthe wages paid by the defendants to the plaintiff. However, conftary [* 5] to defense counsel's assertions, the substance ofthese documents simply does not establish that the defendants' rationale for the plaintiff s termination was due to economic necessity (Balsamov Suvin Corp., supra; Andre v Pomeyoy, supra;). In addition to the foregoing, the Court finds the various legal arguments offered in support of the defendants' instant application to be substantively unavailing. As recited above, defense counsel argues that the plaintiff s status as an at will employee fatally compdses the viability of the underlying claim sounding in retaliation. As a general proposition, " 'an employer's right at any time to terminate an employment at will remains unimpaired' " except in the face of a statutory proscription (Smalley v. Dreyfus Corp., 10 NY3d 55 [2008] quoting Murphy v American Home Products Corp.,58 NY2d 293 [983] at 305). The Court ofAppeals has specifically recognized the provisions embodied in Labor Law $215, which expressly bar an employee's discharge "for participating in a proceeding related to the Labor Law", as just such a proscription (Murphy v American Home Products Corp, supra at 303 152 nl; Liebowitz v Bank Leumi Trust Co. of New York, AD2d 169 [2d Dept 1989]). Thus, given thisjudicially recognized statutory proscription, which serves to limit the general parameters of an at will employment relationship, coupled with the unresolved factual issues surrounding the plaintifPs termination, the Court finds that the underlfng action may be properly maintained irrespective of the plaintiffs at will status (ld.). Further, this Court is not persuaded by defense counsel's assertion that in order to state a claim under the statute, the plaintiff is required to establish that she rnade a complaint about the defendants to a govemment agency. When interpreting a statute, the Court's function is to "attempt to effectuate the intent ofthe Legislature, and where the statutory language is clear andunambiguous, the court should construe it so as to give effect to the plain meaning of New York,}2 AD3d 836 [2d Dept2006] quoting Matter of Elgut ofthe words used" (Ryder v City v County of Suffulk,1 AD3d 512 [2d Dept 2003] at 513; Statutes $94). Here, the language embodied in Labor Law $215 unambiguously provides a mode of relief to employees who have been discharged because such employee "has caused to be instituted * + * a proceeding under or related to this chapter, * * *." Accordingly, to accept defense counsel 's assertion would require this Court to ignore the plain language of the statute and concomitantly thwart the intent articulated by the legislature by narrowing the circumstances which trigger relief thereunder (id.). Finally, with respect to the [* 6] defendants' argument that Mr. Abbondandolo may not be sued in his individual capacity, this Court also finds same to be equally unavailing (ld.). Here again the express terms of the statute under which the plaintiff is seeking relief plainly state that "[a]n employee may bring a civil action.in a court of competent jurisdiction against any employer or persons alleged to have violated the provisions ofthis section" (Labor Law $215[2][a]; ;d.). As the defendants have failed to establish primafacie entitlement to summary j udgment, this Court need not consider whether the plaintiffs opposition papers were sufficient to raise a triable issue of fact (Mariaca-Olmos v Mizrhy,226 AD2d437 [2d Dept 7996]; Lameni v Verizon,34 ADSd s3s [2d Dept 2006]). Based upon the foregoing, the application interposedby the defendants, Vito Abbondandolo, CPA and Vito Abbondandolo, individually, which seeks an order ganting summary judgment dismissing the plaintiff s complaint, is hereby DENIED (Sequence #002). This constitutes the Decision and Order ofthe Court. All applications not specifically addressed are Denied. ENTER DATED: March 11, 2013 ED ARTIII,JR M. DIAMOND IIAR To; rotl -I#;,..*, Attomey for Plaintiff Attomey for Defendant BRENDAN CHAO LYNCH & LYNCH 4l I Franklin Avenue, Suite 3l I Garden Ciw. New York I I 530 67 Cutter Mill Road Great Neck, New York I 1021 tl r.6la ,
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