Gookool v Laser

[*1] Gookool v Laser 2014 NY Slip Op 50906(U) Decided on June 6, 2014 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 6, 2014
Supreme Court, Suffolk County

Stephen Gookool, Plaintiff(s),

against

Maloya Laser, RETO HUG, PRESIDENT, ROGER HUG, MARKETING DIRECTOR and MARC ANDERES, VICE PRESIDENT OF OPERATIONS, Defendant(s)



10814-2013



Law Offices of Andrew J. Schatkin

Attorneys for Plaintiff

350 Jericho Turnpike

Jericho, New York 11753

Campolo, Middleton & McCormick, LLP

Attorneys for Defendants

3340 Veterans Memorial Highway, Suite 400

Bohemia, New York 11716
Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendants, dated July 10, 2013, and supporting papers, including Memorandum of Law; (2) Memorandum of Law by the plaintiff, dated [*2]July 25, 2013, and supporting papers; (3) Reply Affirmation by the defendants, dated August 12, 2013, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (002) by the defendants, which seeks an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(1) and (7), is hereby granted to the extent set forth herein; and it is further

ORDERED that counsel for the defendants shall promptly serve a copy of this Order upon counsel for the plaintiff via First Class Mail and shall promptly thereafter file the affidavit of such service with the County Clerk.

On or about December 19, 2011, plaintiff was hired by the defendants as a Shipping and Receiving Clerk. In conjunction with his hiring, plaintiff executed various documents, including an employment offer letter, which confirm his job description and his status as an at-will employee. After his first full year of employment, the plaintiff received a 2012 Employee Performance Review, which reflects that he met or exceeded normal requirements. Plaintiff acknowledged his Performance Review by signing the Review form, without comment, on March 15, 2013. As a result of his Performance Review, defendants increased plaintiff's salary by 4%, which plaintiff acknowledged by signing an April 16, 2013 Memo. Notwithstanding his positive Review and increase in salary, two days later, on April 18, 2013, plaintiff filed the instant complaint, essentially alleging that the defendants discriminated against him because of his national origin, Trinidad. Plaintiff's First Cause of Action alleges that the defendants created a hostile work environment in violation of New York executive Law §296. The Second Cause of Action alleges that the plaintiff has suffered extreme mental and emotional distress as a result of the alleged hostile work environment. Plaintiff's allegations are premised on the allegation that the defendants required the plaintiff to perform certain work tasks in addition to his job responsibilities as a Shipping and Receiving Clerk. Defendants now move to dismiss plaintiff's complaint pursuant to CPLR 3211(a)(1) and (7).

Pursuant to CPLR 3211(a)(1), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . a defense is founded upon documentary evidence." A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 808 NYS2d 573 [2005]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 614 NYS2d 972 [1994]; Thompsen v Baier, 84 AD3d 1062, 923 NYS2d 607 [2d Dept 2011]; Rietschel v Maimonides Medical Center, 83 AD3d 810, 921 NYS2d 290 [2d Dept 2011]).

On the question of whether the complaint states a cause of action sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the court is to liberally construe the pleadings, [*3]accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 614 NYS2d 972 [1994]; Corsello v Verizon New York, Inc., 77 AD3d 344, 908 NYS2d 57 [2d Dept 2010]; Lawlor Consultants, Ltd. v Shoreham-Wading Riv. Cent. School Dist., 40 AD3d 1048, 834 NYS2d 875 [2d Dept 2007]; Fay Estates v Toys "R" Us, Inc., 22 AD3d 712, 803 NYS2d 135 [2d Dept 2005]). Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true (Breytman v Olinville Realty, LLC, 54 AD3d 703, 864 NYS2d 70 [2d Dept 2008]; Paolino v Paolino, 51 AD3d 886, 859 NYS2d 463 [2d Dept 2008]; Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 843 NYS2d 104 2d Dept 2007).

If the documentary proof on a motion disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could otherwise withstand a motion to dismiss for failure to state a cause of action (Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914, 891 NYS2d 445 [2d Dept 2009]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530, 846 NYS2d 368 [2d Dept 2007]). Where the facts as alleged do not fit within any cognizable legal theory, the cause of action must be dismissed for failure to state cause of action (Oszustowicz v. Admiral Ins. Brokerage Corp., 49 AD3d 515, 853 NYS2d 584 [2d Dept 2008]).

In a claim of discrimination under New York's Executive Law § 296, the plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination (Stephenson v Hotel Employees and Restaurant Employees Union Local 100 of the AFL-CIO, 6 NY3d 265, 811 NYS2d 633 [2006]). To support a prima facie case of such discrimination, a plaintiff must demonstrate (1) that he or she is a member of a class protected by the statute; (2) that he or she was actively or constructively discharged; (3) that he or she was qualified to hold the position from which he or she was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination (Id.; Ferrante v American Lung Assn., 90 NY2d 623, 665 NYS2d 25 [1997]). The burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason (Id.)

With regard to a claim of employment discrimination under Executive Law § 296[1], a dismissal is properly granted where the plaintiff does not state a cognizable cause of action by failure to allege that plaintiff was a member of a protected class and that adverse employment action occurred under circumstances giving rise to an inference of discrimination based on plaintiff's membership in a protected class (see Torres v Louzoun Enterprises, Inc., 105 AD3d 945, 963 NYS2d 682 [2d Dept 2013]; see also Ferrante v American Lung Assn., 90 NY2d 623, 665 NYS2d 25 [1997]; Lambert v Macy's East, Inc., 84 AD3d 744, 922 NYS2d 210 [2d Dept 2011]). Moreover, where plaintiff makes claims of a hostile work environment, dismissal under CPLR 3211(a)(7) will be granted where the facts in support of plaintiff's allegations of such an environment fall short of alleging that the workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive so as to alter the conditions of the plaintiff's employment and [*4]create an abusive working environment (Torres v Louzoun Enterprises, Inc., 105 AD3d 945, 963 NYS2d 682 [2d Dept 2013] Kamen v Berkeley Coop. Towers Section II Corp., 98 AD3d 1086, 952 NYS2d 48 [2d Dept 2012]).

Here, the essence of the plaintiff's First Cause of Action for discrimination is that the defendant required him to perform certain work tasks in addition to his other job responsibilities as a Shipping and Receiving Clerk. Even if plaintiff's allegations are accepted as true, plaintiff has, nevertheless, failed to meet his initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination under §296 of New York's Executive Law. More specifically, even if plaintiff is a member of a protected class, he has failed to show that adverse employment action occurred under circumstances giving rise to an inference of discrimination based on his membership in that protected class (see Torres v Louzoun Enterprises, Inc,105 AD3d 945, 963 NYS2d 682 [2d Dept 2013]; Stephenson v Hotel Employees and Restaurant Employees Union Local 100 of the AFL-CIO, 6 NY3d 265, 811 NYS2d 633 [2006]).

Section 1 (Employment at Will) of the parties' Terms of Employment, signed by plaintiff on December 14, 2011, states in relevant part:

I agree that ... any employment granted to me is at will and for an indefinite term ... I further understand that the provisions of ... written statements of or regarding personnel policies, practices or procedures that are or may be issued by Company or any official or department thereof ... create no vested rights; that any such provisions may be changed, revised, modified, suspended, canceled, or eliminated by Company at any time without notice; and that they constitute guidelines only and may be disregarded either in individual or Company-wide situations when in the sole opinion and judgment of Company circumstances so require.

Based upon the foregoing, even if, as plaintiff claims, his duties as a Shipping and Receiving Clerk were limited to the specific written list of tasks as plaintiff claims, the plaintiff agreed that such written tasks "created no vested rights" for him, and that any such tasks "may be changed, revised [or] modified ... by [the defendant] Company at any time without notice; and that they constitute guidelines only." The terms of plaintiff's at-will employment, as well as plaintiff's positive review and increase in salary, belie plaintiff's claim that the defendant treated him unfairly and subjected him to a continuous hostile and discriminatory environment in violation of New York executive Law §296. Therefore, plaintiff's First Cause of Action is dismissed.

With regard to the Second Cause of Action, for a plaintiff to recover damages for the intentional infliction of emotional distress, the defendant's conduct alleged must be so outrageous in character and extreme in degree as to surpass the limits of decency so as to be regarded as atrocious and intolerable in a civilized society (Leonard v Reinhardt, 20 AD3d 510, 799 NYS2d 118 [2d Dept 2005]). Here, plaintiff's cause of action for intentional infliction of emotional distress is insufficient as the allegations, even if true, do not rise to the level of extreme and outrageous conduct to support such a claim (see Crispino v Greenpoint Mortgage Corp., 2 AD3d 478 [2d Dept 2003]). Therefore the plaintiff's Second Cause of Action is dismissed.

Based upon the foregoing, defendant's motion to dismiss is granted to the extent that plaintiff' complaint is dismissed in its entirety. Defendant's request for an award of sanctions is denied, as there has be no showing that plaintiff's conduct was frivolous within the meaning set forth in 22 NYCRR §130-1.1.

This constitutes the Order and Judgment of the Court.

Dated:June 6, 2014 PETER H. MAYER, J.S.C.