Stern v Milestones Psychology Group, PLLC

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Stern v Milestones Psychology Group, PLLC 2021 NY Slip Op 32382(U) November 16, 2021 Supreme Court, New York County Docket Number: Index No. 654602/2020 Judge: Lucy Billings 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. [* 1] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 41 ------------- -x ------------ -------- MICHELLE STERN, Index No.,654602/20 20 Plaintiff DECISION AND ORDER -againstu MILESTONES PSYCHOLOGY GROUP, PLLC, KIRSTEN CULLEN SHARMA, and LAURA KIRMAYER, Defendants ------------ ------------ ------ -------x LUCY BILLINGS, J.S.C.: ) Defendants move to dismiss the amended verified complaint's seventh cause of action based on documentary evidence and failure to state a claim~ C.P.L.R. § 3211(a) (1) and (7). Upon such a motion, the court considers the facts alleged in the complaint and presumes them to be true. Himmelstein. McConnell. Gribben. Donoghue & Joseph, LLP v. Matthew Bender & Co .• Inc., 37 N.Y.3d 169, 175 (2021); Connaughton v. Chipotle Mexican Grill. Inc., 29 N.Y.3d 137, 141 (2017); Seaman v. Schulte Roth A.D.3d 538, 538 (1st Dep't 2019). I. & Zabel LLP, 176 THE ALLEGED FACTS According to the amended verified complaint, plaintiff was employed by defendant Milestones Psychology Group, PLLC, as a mental health therapist from June 25, 2018, to January Am. V. Compl., NYSCEF No. 17, ~~ 4, 13. is, 2020. Milestones is a -1 I I psychology practice that specializes in working with children and stern1121 1 2 of 15 [* 2] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 I~ ·their families and schools from preschool through college. 6. Id. <_j[ Defendant .Kirsten cu+len Sharma, Psy.D., is an owner of Milestone s and works for it as a clinical.p sycholog ist. Id. <[<[ Defen·dant Laura Kirmayer, Ph.D., M. S. W., works for 7-9. Milestone s as a clinical psycholog ist and was plaintiff 's direct superviso r. Id. <_j[<_j[ 10-12. Plaintiff worked for Milestone s pursuant to an employmen t_ agreement that provided she would receive· 35% of th,e payn:ients collected for her clinical services until she became a Licensed Clinical Socia~ Worker (LCSW), at which point she would receive 50% of the payments collected for her services. Id. <[<[ 14, 20. To acquire the LCSW designatio n, plaintiff , who already held a Masters of_Social Work degree, was required to obtain a Licensed Master of Social Work (LMSW) designatio n, which she obtained in April 2.019, _and to complete 2,000 hours of supervised clinical social· woik in diagnosis , psychothe rapy, and assessmen t-based treatment plans. Id. <_j[ 18; 8 N.Y.C.R.R . § 74.3(a). Milestone s was to provide plaintiff a qualified superviso r so plaintiff could complete the 2,000 hours of supervised clinical social wdrk. experienc e.required £or the LCSW design~tio n. Milestone s assigned Kirmayer as plaintiff 's superviso r. V. Compl. <_j[ 19. Am. Since Kirmayer was not a qualified superv~so r, plaintiff 's clinical hours that Kirmayer supervised will not count toward the licensing requireme nts. stern1121 Id. <_j[<_j[ 10-12. 2 3 of 15 -I I [* 3] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 • Plaintiff discovered Kirmayer was not a qualified supervisor only after plaintiff's employment with Milestones ended January 16, 2020. ~ Id. 22. . In addition to plaintiff's claims challenging ·her termination based on discriminatio n due to her pregnancy and disability in.~iolation of New York City and State Human Rights Laws, plaintiff claims that defendants breached her employment contract, the seventh cause of action at issue. II. MOTION T.0 DISMISS THE BREACH OF CONTRACT CLAIM A. Grounds for the Motion In moving to dismiss the breach of contract claim pursuant to C.P.L.R. §§ 321l(a) (1), based on documentary evidence, defendants· mai:r:itain that the. employment agreement· def;Ln:i, ti vely shows they owetl no contractu~l obligation tp provide a qu~lified super~isor, so any failure to do so was not an actionable breich of contract. Alternativel y, ·ctefendants contend that the~ provided qualified sripervisors, as shown by other.docume ntary evidence that both Sharma and Kirmayer were qualified su~ervisors after plaintiff received the LMSW des-ignation, ·which was the first point when she was qualified to accumulate supervised clinicai hours toward the LCSW designation. Finally, even if plaintiff alleges a breach of the agreement, defendants contend that she fails to state a viable. cause of action that she lost income or benefits, since the employment contract pr~vided for "At Will" employment. sternil21 Aff. of Kirsten Cullen Sharma. Ex. A,. 3 4 of 15 [* 4] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 NYSCEF No. 19, at 3. B. Applicable Standards Upon defendants' motion to dismiss the amended complaint pursuant to C.P.L.R. § 32ll(a) (7), defendants bear the burden to establish that the amended complaint "fails to state a viable cause of action." 719, 728 (2018). Connolly v. Long Island Power Auth), 30 N.Y.3d In evaluating defendant~' motioni the court must accept plaintiff's allegations as true, liberally construe them, and draw all reasonable inferences'in her favor. Bloomberg L.P., 36 N.Y.3d 450, 454 Doe v. (2021); Connolly v. Long Island Power Auth., 30 N.Y.3d at 728; JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 (2015); M v. 57 Fusion LLC, 189 A.D.3d 1,. 5 (1st Dep't 2020). & E 73-75 LLC The court will not give such consideration, however, to allegations that consist of only bare ,legal conclusions. Myers v. Schneiderman, 30 N.Y.3d 1, 11 (2017); Simkin v. Blank, 19 N.Y.3d 46, 52 (2012); M & E 73-75 LLC v. 57 Fusion LLC, 189 A.D.3d at 5. Instead, the court accepts as true only plaintiff's factual allegations that set forth the elements of a legally cognizable claim and from them draws all reasonable inferences in her favor. Dismissal is warranted if the amended complaint fails to allege facts that fit within any cognizable legal theory. Sassi v. Mobile Life Support Servs.; Inc., 37 N.Y.3d 236 (2021); Faison v. Lewis, 25 N.Y.3d 220, 224 sternl121 (2015). 4 5 of 15 [* 5] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 ·i To- succeed· o·n a motion .to dismiss the amended complaint purs~ant to c.P.L.R. § 32ll(a) (1), the documentary evidence that forms the basis of~ defense must "utterly refute[ } the plaintiff's factual all~gations, conclusively establishing a defense as a matter of law." Himmel~tein. McConnell. Gribben. Donoghue & Joseph. LLP v. Matthew Bender & Co .• Inc., 37 N.Y.3d at 175· (quoting Goshen v. Mutual Life Ins. Co. of N.Y., 314, 326 (2002)). · 193 A.D.3d 493, 98 N.Y.2d See Atsco Footwear Holdings. LLC v. KBG. LLC, 494 (1st Dep't 2021). As under § 32il (a) (7), the court considers the facts alleged in the_complain t as true and affords plaintiff the -benefit of every favorable inference·. Himmelste_in. McConnell. Gribben. Matthew Bender & Co .• Donoghue & Joseph. LLP v. Inc., 37 N.Y.~d at 175. Factual claims flatly contradibted by documentary eviden~e, however, as ~ell as allegations consisting of bare Legal conclu~ions, are not. entitled to any such co~sideration . N.Y.3d at 11; Array BioPharma. 463, .464 (1st Dep' t 2020). Myers v. Schneiderman , Inc. v. AstraZeneca AB, c:P.L.R. § 3211 (a) (1) 30 184 A.D .. 3d does not explicitly define-docum entary evidence, but the·document s must be unambiguous and of undisputed authentic:::::ity , with contents that are essentially undeniable, to establish a conclusive defense. VXI Lux Holdco S.A.R.L. v. SIC Holdings. LLC, 171 A.D.3d 189, 193 (1st Dep't 2019). Defendants point to plaintiff's employment contract as stern1121 5 6 of 15 [* 6] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 documentary evidence of the·parties' agreement that establishes a conclusive defense. The parties stipu~ate that the employment ccintract submitted by defendants, Sharma Aff. E~. A, is authenticated and admissible and that the court may consider it for purposes of defenda~ts' motion. C. Interpretation of the Employment Contract As set. forth ab~ve, defendants contend that the contract does not require Mile~tones to provide supervision for the supervised hours pla~ntiff required for her LCSW designation, so d~fendants' failure to provide a qualified supervisor may not form the basis for a breach of contract. Defendants also suggest that plaintiff's claim requires the cburt to consider parol evidence _outside the terms of the written agreement, and, when that evidence is considered, the claim fails. Plaintiff responds that, while,the contract does not explicitly require Milestones to provide a qualified supervisor, the contract shows the parties intended that plaintiff would attain LCSW status, implying an obligation to provide the required supervisor for her to do so. Plaintiff presents documents showing Kirmayer scheduling and tracking the hours that she supervised plaintiff, acknowledging such an obligatio~. Where a contract's terms are unambiguous, those .terms, coniidered in the context of the whole ~greement, determine the parties' intent. stern1121 Tomhannock, LLC v. Roustabou't Resources, LLC, 6 7 of 15 [* 7] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 3 3 N . Y ,, 3 d 10 8 0 , 10 8 2 ( 201 9 ) . In reviewing the contract to discern the parties' intent, the court must read the agreement in the context of the parties' industry, history, and relationship and avoid an interpretatio n contrary to the parties' reasonable expectations . 159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353, 359 (2019); Wells Fargo Bank, N.A. v. Lloyd's Syndicate AGM 2488, 195 A.D.3d 434, 435 (1st Dep't 2021). The parties' employment contract provides that plaintiff will achieve the LCSW designation. Sharma Aff. Ex. A, at 2. Milestones is in the business of providing psychologica l counseling services, raising the inference that Milestones' officers or supervisory employees are aware of the LCSW accreditation requirements . N.Y. Educ. Law§ 7704. The contract further requires plaintiff to "devote full-time, all of her professional time and efforts to and for the benefit of Milest6nes Psychology" and bars her from "render[ing] professional or clinical services to any person, whether or not for compensation , except as an employee of Milestones Psychology, unless [she] shall first have obtained the written consent of Milestones Psychology." Sharma Aff. Ex. A, at 3-4. These terms, reasonably intBrpreted, indicate that the parties intended plaintiff to perform the required hours of clinical social work at Milestones and under defendants' supervision. At minimum, the contract is ambiguous, so as not to preclude sternll21 7 8 of 15 [* 8] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 / plaintiff's interpretation as a matter of law, and therefore does not support_dismissal of her breach of contract claim. In fact, the documents showing defendants' acceptance of the obl~gation to schedule and compile plaintiff's supervised •hours indicate· that defendants interpreted the terms of her employment consistent with her interpretation. D. Availability of a Qualified Supervisor Defendants also ~ontend that the breach of contract claim ·fails b~cause other documentary evidence shows plaintiff had access to a.qualified supervisor when she was eligible to accrue supervised clinical services hou.rs. According to the records of I . the New York State Office of the Professions, as shown by defendants' print-out from the Office of the Professions' official database, Sharma was a licensed psychologist. Aff. of Kirsten Cullen Sharma Ex. B, NYSCEF No. 21; N.Y. Educ. Law§ 7704 (2) (c). Defendants contend that this license alone qualified her as a .supervisor for the duration of plaintiff'~ employment. Defendants add that, while Kirmayer may not have been a qualified supervisor when plaintiff was hired, plaintiff was not eligible to accrue supervised hours toward her LCSW designation until she achieved the LMSW de:;:;ignation. 74.3(a)(l): Defendants rely on 8 N.Y.C.R.R. § "Experience obtained in New York must be ob~ained as a licensed master social worker . of this provision, however: sternll21 They omit the remainder "~xcept the [education] department 8 9 of 15 [* 9] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 accept other experience . i i an authoriz~d s~tting and.under the sup~rvision of a qualified supervisor." N.Y.C.R.R. § 8 74.3(a) (1). The parties do not dispute-that plaintiff received the LMSW designation April 16, 2619·_ Defendants present similar documentary evidence showing·Kirm ayer was a licensed psyc~ologist as of April 17, 2019, Sharma Aff. Exs. F-G,· NYSCEF Nos. 25-26, and similarly contend that this license alone qualified her as a Therefore, according to defendants, supervisor as ·of that date . .' when plaintiff became eligible to accrue supervised clinical hours toward her LCSW certification , two qualified supervisors were. availa_ble. First, plai~tiff alleges that Milestones assigned Kirmayer, not Sharma, as plaintiff's supervisor. Plaintiff further contests Kirmayer's status as a qualified supervisor, not only before April 17, 2019, which defendants concede, but also ~fterward, because qualificati6n requires more than the license. A qualified supervisor not only must be licensed, but also mustbe·: qualified in psychotherap y as determined by the department -based upon a review of the psychologist 's education and training, including but not limited to education and training in psychotherap y obtained through completion of a - program in psychology registered pursuant to Part ~2 of this Title or· a program in psychology accredited by the American Psychological · Association. 8 N.Y.C.R.R. sternll21 § 74.6(c) (2) (ii). Defendants present no documentary 9 10 of 15 [* 10] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 -- --- -· --- --------- ----- - - - - , Defendants reply that plaintiff now takes a new position, that Kirmayer was unqualified, rather than unlicensed, and plaintiff bears the burden to establish that Kirmayer was ·unqualified. Plaititiff does not bear that burden in opposing defendants' motion to dismiss her breach of contract claim. Her allegation that defendants breached the part~es' contract by failing to provide a qualified supervisor is enough. Defendants' document showing Kirmayer was licensed as of April 17, 2019, does not .conclusively establish that she was qualified pursuant to 8 N.Y.C.R.R. § 74.6(c) (2) (ii) as a matter of law, since the regulation indicates a further qualitative or discretionary analysis beyond licensure. Himmelstein, McConnell, Gribben, Donoghue & Jdseph. LLP v. Matthew Bender & Co .• Inc., 37 N.Y.3d at 175; Atsco Footwear Holdlngs. LLC v. KBG, LLC, 193 A.D.3d at 494. Plaintiff also relies on 8 N. Y. C.R. R. §§ 7 4. 3 (a) ( 1) and 74.6(a); which permit a social worker without a LMSW designation to accrue supervised clinical ioc~al work hours in "an authorized setting." 8 N.Y.C.R.R. § 74.3(a) (1). Defendants present no documentary evidence or other law to establish that Milestones was not an authorized setting. In fact, the regulations suggest that Milestones was an authorized setting. stern1121 Although they do not define those terms, 8 10 11 of 15 \ \ [* 11] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 .. - N.Y.C.R.R. § 74.3(a) (2) requires that: "The supervised experience shall be obtained in a setting acceptable to the Section department as defined in section 74~6(a) 7 [!. 6 (a) ( 1) in turn sheds light o'n the meaning of "authorized" setting in listing categories of "acceptable" settings, including a "professional service limited liability company authorized to provide services that are within the s€ope of practice of· licensed clinical social work." ( emphasis added) : 8 N.Y.C.R.R. § 74.6(a) (1) (i) See;tion 7 4. 6 (a) ( 1) also lists " (vi) a program or .-facility ·authorized under federal law to provide services that are within the scope of practice of licensed clinical social work" and "(vii) an entity. authorized under New York law.to provide services that are within the scope of practice 6f licensed clinical social work." (emphases added) Giyen the parties' consistent descriptions of Milestones, it is doubtf~l that Milestones is not "authorized to provides s·ervices that a_re within th~ scope of practice of licensed social work." N.Y.C.R.R. § 74;6(a) (1) (i). 8 Therefore plaintiff sustains a viable claim that defendants denied her a qualified supervisor under whom plaintiff could accumulate supervised clinical hours before April 2019 when she received her LMSW designation, 8 N.Y.C.R.R. §§ 74.3(a) and 74.6(a) and (c) (2) (ii), which deferidapts' documentary evidence fails to refute. In sum, defendants fail to refute plaintiff's allegations _stern1121 11 12 of 15 [* 12] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 ' RECEIVED NYSCEF: 11/18/2021 ,; that Kirmayer, rather than Sharma, was plaintiff's supervisor I designated by Mi"iestones and that.Kirmaye r was not a qualified I supervisor, ~reventing plaintiff from accumulatirig needed I i supervised clinical hours. Defendants' documentary evidence other than the parties' contract, when analyzed under the apFli~able _regulations, 8 N.Y.C.R.R. (c)" (2) §§ 74.3(a), 74.6(a) and (ii), fails to support dismissal· of plaintiff's breach of contract claim. E. Lack of an Injury A breach of contract claim requires allega_tions "of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages." A.D.3d '401, 401-402 (1st Dep't 2019) Markov v. Katt, 176 (quoting Harris v. Seward Park Hous. Corp., 79 A.. D.3d 425, 426 (1st Dep't 2010)). Defendants ins~st that pla~ntiff's mere allegation tha~ her supervised hours "may not count toward licensure•," Am. V. Compl. <JI 24, · combined with her at will ~mployment, precludes her claim for lost income and benefits. Defendants point to the absence of any allegation that i governing·bod y has rejected plaintiff~s super~iied houts, that plaintiff has incurred any expense obtaining the supervised hours that defendants denied her, or why she would incur expenses to obtain those hours, rather than obta_ining them as part of her future employment. Al though plaintiff explains that it is possible to hire a qualified stern1121 12 13 of 15 [* 13] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 · ··supervisor ·If an ··employer does. riot provide one, she does not allege that she has done so. Defendants' suggestion that plaintiff might be credited with, her supervised hours at Milestones, however, pertains only to the hours Kirmayer supervised after April 16, 2019. Defendants admit that Kirmayer was unqualified to supervise plaintiff before then and maintain that Sharma supervised plaintiff before then, but plaintiff disputes Sharma's supervision. Plaintiff claims that, if she had had a qualified supervisor before April 16, 2019, she could have accumulated supervised hours before then, 8 N.Y.C.R.R. §§ 74.3(a) (1) and 74.6(a), but defendants do not suggest that a governing body might credit plaintiff with supervised hours before then. In any event, the amended complaint alleges that defendants' · breach by failing to provide plaintiff a qualified supervisor, whether or not that failure extended back to the beginning of her employment, denied her the opportunity to obtain supervised clinical hours during her employment, which set her back in her career. Rather than having progressed toward eligibility for the LCSW designation when she left Milestones, she was required to begin again to accumulate the required supervised hours. Giving plaintiff the benefit of every inference, and considering whether the alleged facts support "any cognizable legal theory," not only a theory explicitly cla,imed, Himmelstein, McConnell, Gribben, · sternl121 13 14 of 15 [* 14] INDEX NO. 654602/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/18/2021 Dorioghu·e & 'Joseph. LLP v. Mat thew Bender & Co. • In·c. , 3 7 . N. Y. jd at 175, this lost opportunity delayed her LCSW accreditation, set back her career, and -caused her lost fu~ure income, as we+l as potential ·expenses to obtain those hours elsewhere. These claimed losses satisfy the requirement that plaintiff allege she was injured b~ defendants' supervisor. failure to provide a qualifi~d Therefore the court denies defendants' motion to dismiss plaintiff's breach of contract claim based on hei f~ilure to allege any injury from the ~reach. III. CONCLUSION For all the reasons explained above, the court denies defendants' motion to dismiss plaintiff's breach of contract claim. C.P.L.R. § 3211(a) (1) and (7). Defendanfs shall serve and file their answer to the amended. c.o'mplaint wi_thin 20_ days after entry of this order. C.P.L.R. §§ 3012(a), 3211(f). The parties shall appear.for a Preliminary Conference to be held via Microsoft Teams, with a link to be provided by the court, at 10:00 a;m. December 14, 2021. DATED:. November 16, 2021 LUCY BILLINGS, J.S.C. ~UOY IUlll:NGS J.S.C stern1121 14 15 of 15

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