Weir v Montefiore Med. Ctr.

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Weir v Montefiore Med. Ctr. 2020 NY Slip Op 35325(U) June 10, 2020 Supreme Court, Bronx County Docket Number: Index No. 42000/2020E Judge: Ruben Franco Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: BRONX COUNTY CLERK 06/16/2020 03:37 PM NYSCEF DOC. NO. 60 INDEX NO. 42000/2020E RECEIVED NYSCEF: 06/16/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRO X - JAS PART 26 NICHOLAS WEIR Index No. 42000/2020E Plaintiff, MEMORANDUM DECISION/ORDER -againstMONTEFIORE MEDICAL CENTER, ALBERT EINSTEIN COLLEGE OF MEDICINE, AND YESHIVA UNIV RSITY Defendants. Ruben Franco, J. This is an action for, inter alia discrimination, retaliation, equal pay and hostile work environment. Defendant Yeshiva University (Yeshiva) moves to dismiss the Amended Complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Plaintiff, a pro se Iitigant, cross-moves to amend the previously Amended Complaint. Plaintiff identifies himself as a male with a dark complexion from Jamaica, who was employed by defendant Albert Einstein College of Medicine (Einstein) as a research technician from December 28 2015 through March 4, 2016. On September 9 2015, prior to plaintiffs employment with Einstein, Yeshiva and defendant Montefiore Medical Center (Montefiore) entered into an agreement to transfer financial and operational responsibility of Einstein from Yeshiva University to Montefiore. On December 20 2016 plaintiff commenced an action against defendants in the United States District Court for the Southern District of ew York and filed an Amended Complaint on .Jul y 6, 2017. Defendants' motion to di smiss the Amended Complaint was granted. The Court determined that plaintiff had "not plausibly alleged a violation of Title VII." However, the Court declined to detennine the state and local law claims, allowing plaintiff to proceed in State court. [* 1] 2 of 6 INDEX NO. 42000/2020E FILED: BRONX COUNTY CLERK 06/16/2020 03:37 PM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 06/16/2020 Plaintiffs appeal to the United States Court of Appeals for the Second Circuit was denied and he commenced an action to pursue his State claims in ew York State Supreme Court, Queen County, which was transferred to Bronx County on July 26, 20 19. On a motion to dismiss, a Complaint must be liberally construed the factual allegations set forth must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (Miglino, Bally Total Fitness ofGreater N. Y , Inc. 20 NY3d 342[2013]; Lee v Dov. Jon es & Co. , Inc. 121 AD3d 548 [ l t Dept 2014]). Affidav its may be considered freely "to preserve inartfully pleaded but potentially meritorious, claims· in a Complaint (Rovella v Orofino Realty Co., 40 Y2d 633 635 [1976]" Finkel tein Newman Ferrara LLP v Manning, 67 AD3d 538 540 [1 1 Dept 2009]). Vague and conclusory allegations are insufficient to maintain a cause of action (see Fov. ler v American Lawyer Media 306 AD2d 113 [1 s t Dept 2003]). In 51 I W 232nd Q\,i ner. · orp. v Jennifer Realty Co. (98 Y2d 144 151-152 [2002]) , the Court explained that it is the court ' s task "to determine whether plaintiffs' pleading state a cause of action. The motion must be denied if from the pleadings' four comers ' factual allegations are discerned which taken together manifest any cause of action cognizable at law' (Polonetsky v Better Hom es Depot , 97 NY2d 46 54 [200 I], quoting Guggenheimer v Ginzburg, 43 NY2d 268 275 [1977]). (See Siegmund Strau · , Inc. v East 149th Realty Corp ., 104 AD3d 401 403 [Pt Dept 2013].) To prevail in an emp loyment action against a defendant is who not plaintiffs direct employer, the plaintiff must establish that the defendant is part of an ' integrated enterprise' with the hiring employe r ( ·ee Brightman v Pri on Health Serv.. Inc. 33 Misc 3d 1201 (A), *5 [Sup Ct QueensCounty 2011] ; Lambert v Macy's E. , Inc. 34 Misc 3d 1228 [A],* 18 [Sup Ct Kings Count 20 1O]). The court looks at several factors to hold an employer liable under the New York State 2 [* 2] 3 of 6 INDEX NO. 42000/2020E FILED: BRONX COUNTY CLERK 06/16/2020 03:37 PM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 06/16/2020 Human Rights Law (NYSHRL), including whether the alleged employer had the power of the selection and engagement of the employee; paid the salary or wages to the employee; had the authority to dismiss the employee; and, had the power to control the employee's conduct. The most important consideration is whether the alleged employer exercised control over the employee's conduct and the incidents of employment (see Griffin v Sirva, Inc. , 29 Y3d 174, 186 [2017]). Here, plaintiff alleges in the Amended Complaint that defendants retaliated and discriminated against him, and facilitated a hostile work enviromnent, and tem1inated his employment untimely and unreasonably during his probationary period; that he experienced retaliation because he filed a otice of Intention to file a claim in the Court of Claims against the Attorney General ofNew York and the City University ofNew York; that his pay rate was abruptly reduced after he began working in the lab· that he had missing hours from his pay stubs· that he was not given a stable workstation that other lab members had; and , that he observed government agents maliciously targeting and stalking him within the institution during his probationaiy period. Plaintiff asserts that he worked in the lab late at nights and on occasionally on weekends. and in the eai·ly weeks he regularly received po itive reviews from Dr. Gavathiotis, who praised him for his work motivation. With respect to the acts of discrimination, plaintiff alleges that on March 2 2016, his supervisor Dr. Gavathiotis, informed him that his job would be terminated effective March 4 2016 , instead of March 31 2016, which marked the end of his 90-day probationary period. Dr. Gavathiotis infom1ed him that he wanted someone who had experience working with mice despite having hired plaintiff knowing that he did not have such experience. He also alleges that Dr. Gavathiotis informed him that two of the other lab members did not trust him, and that he did not "fit in '. Plaintiff further claims that on March 4 2016 Robert Cancellieri the Director of 3 [* 3] 4 of 6 FILED: BRONX COUNTY CLERK 06/16/2020 03:37 PM NYSCEF DOC. NO. 60 INDEX NO. 42000/2020E RECEIVED NYSCEF: 06/16/2020 Employee Relations informed him that he was terminated because he did not pass the probationary period, and that plaintiff could not visit the lab even though Dr. Gavathiotis had allowed him to olunteer in the lab until he found a job. In opposition to the motion, plaintiff speculates that Yeshiva maintains certain financial ties with Montefiore and Einstein; and allege that Yeshiva was involved in acts of retaliation and discrimination; and that Yeshiva failed to discourage Einstein's unlawful behavior and did not prevent plaintiff's wrongful termination . Yeshiva's basis for dismissal is that plaintiff only makes claims about his employment with Einstein, which, as stated above, commenced in December 2015 , more than two months after Yeshiva transferred financial and operational responsibility of Einstein to Montefiore. Yeshi va argues that plaintiff's Amended Complaint fails to state a cause of action against it because he does not make any allegation agai nst it. Indeed , plaintiff does not refer to Yeshi va any where in the Amended Complaint except in the case caption. It is undisputed that Montefiore assumed financial and operational re ponsibility for Einstein. In the Amended Complaint, there are no allegations that Yeshiva engaged in any acts of discrimination against plaintiff, nor that Yeshiva had the power to hire or dismiss pl aintiff or pay his wages, or had control over his conduct ( ee Griffin v Sirva, inc. 29 NY3d at 186). With respect to the plaintiffs cross motion pursuant to CPLR 3025 (b), plaintiff must submit a proposed amended pleading. In Pollak v Moore (85 AD3d 578, 579 [l st Dept 2011]), the Court stated: "Insofar as plaintiff requested leave to serve a second amended complaint denial. of such relief was a proper exercise of discretion as plaintiff failed to annex a copy of a proposed econd amended pleading to his motion papers and he did not otherwise offer an affidavit of merit or any '·new" facts as would overcome the legal defects in his prior two complaints (see generally Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424 [(1 st Dept) 2006]· Gonik v Israel Discount Bank 4 [* 4] 5 of 6 ,·. . . . INDEX NO. 42000/2020E FILED: BRONX COUNTY CLERK 06/16/2020 03:37 PM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 06/16/2020 ofN Y. , 80 AD3d 437, 438-439 [(1st Dept) 2011])." Here, plaintiff has failed to submit a copy of his proposed Second Amended Complaint Accordingly, Yeshiva' s motion to dismiss is granted. The claims against the remaining defendants are severed and shall continue. Plaintiffs cross motion to amend his Amended Complaint is denied. This constitutes the Decision and Order of the court. Dated: June 10, 2020 Ruben Franco, J.S.C. HON. RUBEN FRANCO 5 [* 5] 6 of 6

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