Opinion
19618/2010.
Decided on March 22, 2011.
Upon the following papers numbered 1 to 16 read on this motion to dismiss: Notice of Motion and supporting papers, 1 — 11; Answering Affidavits and supporting papers, 12 — 16.
This is an action filed on May 28, 2010 by plaintiff alleging violations of Federal and New York State discrimination law; Federal and New York State law prohibiting a hostile work environment and harassment based upon age; common law negligent hiring; intentional infliction of emotional distress; and prima facie tort, against Arnold Chevrolet, plaintiff's former employer, Frank Bellavia, Arnold Chevrolet's manager and Mark Cohen, Arnold Chevrolet's service director. The action arises out of plaintiff's former employment with Arnold Chevrolet from 2004 through October 17, 2008. Plaintiff asserts he was wrongfully terminated by Arnold Chevrolet based upon incidents which were written up without merit and used as a pretext for his wrongful termination. Plaintiff claims he was pressured to resign or he would be denied unemployment benefits. Plaintiff further asserts Arnold Chevrolet had a history of eliminating workers "40 years and older" despite seniority. Plaintiff contends he was replaced by a younger person less than 40 years of age, with less seniority, who was given preference and provided with training to upgrade his skills and certifications, which opportunities were not provided to plaintiff.
On or about October 24, 2008, plaintiff (or "complainant") filed an administrative complaint with the New York State Division of Human Rights ("NYSDHR"), alleging, inter alia, that Arnold Chevrolet's decision to terminate plaintiff's employment was based upon age discrimination and a hostile work environment which harassed plaintiff because of his age.
In opposition to the complaint filed with NYSDHR, on December 15, 2008, Arnold Chevrolet filed a formal denial, asserting the termination of plaintiff's employment was not related to age discrimination, but was based upon poor workmanship and carelessness over a three-year period, which included both written and verbal warnings.
Contemporaneous to the filing of the complaint with NYSDHR, on or about October 27, 2008, plaintiff (or "grievant") also filed a union grievance for arbitration with the United Service Workers, Local 355, IUJAT ("the Union"), claiming his termination violated the collective bargaining agreement ("CBA") in that the termination was not based on "just cause," and seeking reinstatement, back pay and benefits. Arnold Chevrolet denied the allegations.
By opinion and award dated December 18, 2008, following the arbitration hearing of December 5, 2008, an arbitrator found that the termination did not violate the collective bargaining agreement and Arnold Chevrolet had "just cause" to terminate plaintiff, thereby sustaining and affirming the discharge of plaintiff. The arbitrator also found the grievance filed under the CBA by plaintiff to be "wholly without substance or merit."
After exceptions filed by grievant, an amended opinion and award dated January 19, 2008 (sic) was issued by the arbitrator. All mention of any pending discrimination claim was deleted. The arbitrator re-phrased the issue to be decided as: "Was the termination of the Grievant Anthony D'Amico for just cause? And if not what shall the remedy be?"
Though the amended opinion and award is dated January 19, 2008, it is clear that it actually refers to January 19, 2009, as it amended the opinion and order of the arbitrator dated December 18, 2008, and followed thereafter. Also, the submission to the court of the amended opinion and award was stamped "Received" on February 2, 2009, by the Law Offices of Richard M. Greenspan, P.C., grievant's attorney, demonstrating the proper year to be 2009.
Again, the arbitrator found that Arnold Chevrolet had "just cause" to terminate plaintiff, thereby sustaining and affirming the discharge of plaintiff. The arbitrator again found the grievance filed by plaintiff to be "wholly without substance or merit." The decision notes that in accordance with the CBA, "the decision of the Arbitrator shall be final and binding upon the parties."
Thereafter, upon investigation of the complaint submitted by plaintiff, and after opportunity for review of related information and evidence by the named parties, the NYSDHR issued a Determination and Order dated March 31, 2010, under Case No. 10129185, and under Federal EEOC Charge No. 16GA900584, finding that "there is NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." The determination was based upon the following:
The investigation failed to support the Complainant's allegation that he was discriminated against on the basis of age, when he was terminated from his job. The Respondent provided a legitimate non-discriminatory reason for his termination. Specifically, the Complainant had amassed a poor performance record and was insubordinate to his supervisor, Mark Cohen.
The investigation revealed comparative data provided by the Respondent that showed employees older than the Complainant received training. Comparative data was provided by the Respondent that showed out of 40 employees, 12 were older than the Complainant. The Respondent provided evidence to show that another employee was fired for the same reason as the Complainant, who was younger than the Complainant, demonstrating a lack of animus on the basis of age.
The investigation failed to support the Complainant's claim that he was the subject of disparate treatment on the basis of his age when he was terminated.
The complaint is therefore ordered dismissed and the file is closed.
The written NYSDHR Determination and Order of March 31, 2010 further informed plaintiff that he had the right to appeal the decision, by filing a Notice of Petition, and Petition, with the Supreme Court of the State of New York in the County where the alleged unlawful discriminatory practice took place, within sixty (60) days after service of the determination, with a copy of the Notice of Petition, and Petition to all parties including the General Counsel of NYSDH ( see, Executive Law § 298; 22 NYCRR § 202.57).
In addition, the written NYSDHR Determination and Order of March 31, 2010 informed plaintiff that his administrative complaint had also been filed under the Age Discrimination in Employment Act, 29 USC § 621 et seq. ("ADEA"), under EEOC Charge No. 16GA900584. Enforcement of this Federal law is the responsibility of the U.S. Equal Employment Opportunity Commission ("EEOC"). The written decision also informed Plaintiff that he had the right to have EEOC review the written NYSDHR Determination and Order of March 31, 2010, which had to be done in writing within 15 days of his receipt of the written determination by NYSDHR, or the EEOC would generally adopt the action of the NYSDHR in the ADEA case.
The Court record is bereft of any documents showing service of a Notice of Petition and Petition, seeking an appeal in the Supreme Court, Suffolk County, within sixty (60) days after service on plaintiff of the NYSDHR Determination and Order of March 31, 2010 ( see, Executive Law § 298; 9 NYCRR § 465.20; Gil v. New York State Div. Of Human Rights , 17 AD3d 365 [2nd Dept., 2005]). Nor does the record demonstrate that plaintiff requested in writing a review by the EEOC of the NYSDHR Determination and Order of March 31, 2010, within 15 days of receipt of the NYSDHR decision.
Now, defendants move to dismiss the complaint pursuant to CPLR § 3211 (a) (2), (5), (7), and (8). In support of the motion, defendants assert all of plaintiff's causes of action are barred as a matter of law. Defendants' first contention for dismissal is that although the complaint alleges age discrimination pursuant to 42 USC § 1981, the statute does not cover age discrimination, only race discrimination.
As defendants' motion is made pursuant to CPLR § 3211, and no copy of a Verified Answer was submitted to the Court by any party, the Court determines that issue has not been joined.
Plaintiff opposes dismissal pursuant to CPLR § 3211 (a) (7), asserting, inter alia, he has properly stated causes of action in his complaint. He claims defendants' arguments are without merit, and defendants' motion should be denied in its entirety.
When a moving party seeks dismissal of a complaint pursuant to CPLR § 3211 (a) (7), the standard generally is "whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Sokol v. Leader , 74 AD3d 1180 [2nd Dept., 2010]). The Court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable theory" ( Nonnon v. City of New York , 9 NY3d 825 ; see also, Cohen v. Cohen-Fisher , 78 AD3d 640 [2nd Dept., 2010]). However, a Court is permitted to consider evidentiary material submitted by a defendant ( see, CPLR § 3211[c]) in a motion to dismiss under CPLR § 3211 (a) (7), wherein the criterion then becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Sokol v. Leader , 74 AD3d 1180 [2nd Dept., 2010], at 1181-1182, quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275). Dismissal under CPLR § 3211 is not warranted unless it is established "conclusively that the plaintiff has no cause of action" ( Sokol v. Leader , 74 AD3d 1180 [2nd Dept., 2010], at 1182, quoting Lawrence v. Graubard Miller , 11 NY3d 588 , 595).
Section 1981 was enacted as part of the Civil Rights Act of 1866 "to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination because of their ancestry or ethnic characteristics" ( St. Francis Coll. v. Al-Khazraji, 481 US 604, 609; Parker v. Metropolitan Tr. Auth., 97 F Supp 2d 437 [SD NY 2000]; 42 USC § 1981). However, this section does not apply to age discrimination claims, as by its terms "section 1981, which was amended by the 1991 Act, assures all individuals the rights enjoyed by white citizens' without any reference to age" ( Parker v. Metropolitan Tr. Auth., 97 F Supp 2d 437 [SD NY 2000], at 452; 42 USC § 1981).
Here, the complaint alleges claims which stem from age discrimination exclusively, not racially or ethnically motivated discrimination. Therefore the claims alleged in the first, twelfth and twenty-third paragraphs of the complaint purportedly under section 1981 are unsupported and insufficient to state a cause of action under 42 USC § 1981 ( see also, Parker v. Metropolitan Tr. Auth., 97 F Supp 2d 437 [SD NY 2000]; Wyche v. Marine Midland Bank, N.A., 1996 US Dist LEXIS 3312, at 12, No. 94 Civ 4022,1996 WL 125668, at 4 [SD NY 1996]). Accordingly, the claims to the extent they are alleged under 42 USC § 1981 in the first and third causes of action against defendants are hereby dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
Defendants' next contention for dismissal is that all New York State Human Rights Law ("NYSHRL") claims against Arnold Chevrolet are barred by the election of remedies doctrine pursuant to Executive Law § 297 (9). In support of the motion, defendants assert it is undisputed that the claims alleged in the second and third causes of action in the subject complaint, are identical to the facts and circumstances asserted in the complaint filed with NYSDHR against Arnold Chevrolet on or about October 24, 2008. After investigation by NYSDHR, it issued its determination and order of March 31, 2010, which found on the merits there was no probable cause to support plaintiff's NYSHRL age discrimination complaint. Defendants contend the election of remedies doctrine prohibits plaintiff from now bringing a plenary action in this court asserting the same age discrimination violations of the NYSHRL, or seeking review of NYSDHR's determination. Furthermore, defendants contend that plaintiff waived his right to contest NYSDHR's determination by failing to file a Notice of Petition and Petition with the Supreme Court of Suffolk County within 60 days of receipt of NYSDHR's determination, seeking a review of whether NYSDHR's determination was based upon substantial evidence or was arbitrary or capricious.
Defendants also contend that the state human rights claims of age discrimination against defendants Bellavia and Cohen, are barred by the election of remedies doctrine pursuant to Executive Law § 297(9). In support, defendants assert it is undisputed that the claims alleged in the second and third causes of action in the subject complaint, are again identical to the facts and circumstances asserted in the complaint filed with NYSDHR on or about October 24, 2008. Though Bellavia and Cohen were not named in the caption of the NYSDHR age discrimination complaint brought against Arnold Chevrolet by plaintiff, the NYSDHR determination concluded there was no probable cause to support age discrimination against their employer Arnold Chevrolet. Therefore, defendants assert this determination precludes a finding against individual employees of Arnold Chevrolet as a matter of law.
Plaintiff opposes dismissal pursuant to CPLR § 3211 (a) (7), asserting, inter alia, he has properly stated causes of action in his complaint. He claims defendants' arguments are without merit and their motion should be denied in its entirety.
Pursuant to Executive Law § 297 (9), often called the election of remedies provision ( see, Nagle v. John Hancock Mut. Ins. Co., 767 F Supp 67, 69 [SD NY 1991]), in the absence of a dismissal by NYSDHR on the grounds of administrative convenience or untimeliness, "any person claiming to be aggrieved by an unlawful discrimination practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder [with the State Division of Human Rights] or with any local commission of human rights" [emphasis added] ( see also, York v. Assoc. of the Bar of the City of New York, 286 F3d 122, 127 [2nd Cir., 2002]). Under § 297, an aggrieved individual must make "a choice of instituting either a judicial or administrative proceeding. He may not, however, resort to both forums; having invoked one procedure, he has elected his remedies" ( Koster v. Chase Manhattan Bank, N.A., 609 F Supp 1191, 1196 [SD NY 1985]). The filing of an administrative complaint "cuts off the complainant's right to resort to the courts to redress state human rights violations" ( id. at 1196).
Here, it is undisputed that the claims alleged in the second and third causes of action in the complaint are identical to the facts and circumstances asserted in the complaint filed with NYSDHR against Arnold Chevrolet on or about October 24, 2008. After investigation by NYSDHR, it issued its determination and order of March 31, 2010, which found on the merits there was no probable cause to support plaintiff's NYSDHR age discrimination complaint and dismissed the complaint. The dismissal was not based on the grounds of administrative convenience or untimeliness. Therefore, the Court determines that plaintiff made an election of remedies by the filing of its complaint with NYSDHR, which alleged identical facts and circumstances as contained in the instant complaint, resulting in dismissal by NYSDHR. Having invoked the administrative proceeding over the judicial process, plaintiff cut off resort to the courts for redress. Moreover, having not tested whether the NYSDHR decision was based upon substantial evidence or was arbitrary or capricious, in the Supreme Court of Suffolk County, within sixty days of receipt of the decision ( see, Executive Law § 298; CPLR § 7801 et seq.), plaintiff waived the right to contest the administrative findings. Under these circumstances, the Court is divested of subject matter jurisdiction ( see, Emil v. Dewey, 49 NY2d 968; Spoon v. American Agriculturist, Inc. 103 AD2d 929 [3rd Dept., 1984]; McGrath v. State Human Rights Appeal Board, 90 AD2d 916 [3rd Dept., 1982]; see also, Horowitz v. Aetna Life Ins., 148 AD2d 584, 585 [2nd Dept., 1989]). Accordingly, the second and third causes of action alleging state human rights claims of age discrimination against Arnold Chevrolet are hereby dismissed pursuant to CPLR § 3211 (a) (2) with prejudice.
Plaintiff's state human rights claims of age discrimination against defendants Bellavia and Cohen are also barred. Here, again, NYSDHR's findings on the merits in its order of March 31, 2010 determined there was no probable cause to support plaintiff's NYSDHR age discrimination complaint against Arnold Chevrolet and dismissed the complaint. The dismissal was not based on the grounds of administrative convenience or untimeliness. As plaintiff did not contest the NYSDHR's findings which dismissed the state administrative complaint, plaintiff cannot now establish a violation of the state age discrimination law by Arnold Chevrolet. It is "the employer's participation in the discriminatory process which serves as the predicate for the imposition of liability on others for aiding and abetting" ( Murphy v. ERA United Realty, 251 AD2d 469, 472 [2nd Dept., 1998]; see also, Donlon v. Board of Educ. of Greece Cent. School Dist., 2007 WL 4553932 [WD NY 2007]; Torres v. Vittoria Corp., 2008 WL 2937180, 2008 NY Slip Op 32072 [U] [Sup Ct, NY County, 2008]; Executive Law § 296 [a]).
As plaintiff cannot establish as a matter of law the predicate liability in his complaint of his employer, Arnold Chevrolet, based upon NYSDHR's determination and order of March 31, 2010 ( see, DeWitt v. Lieberman, 48 F Supp 2d 280, 293 [SD NY 1999]; Murphy v. ERA United Realty, 251 AD2d 469, 472 [2nd Dept., 1998]), plaintiff has failed to state a cause of action against defendants Bellavia and Cohen. Accordingly, the second and third causes of action alleging state human rights claims of age discrimination and harassment against defendants Bellavia and Cohen are hereby dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
Plaintiff's state human rights claims of age discrimination against defendants Bellavia and Cohen are also barred under a Court of Appeals ruling that a corporate employee is not individually subject to suit with respect to discrimination based on age or sex under New York's Human Rights Law (NYSHRL) or its Labor Law, if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others ( see, Patrowich v. Chemical Bank, 63 NY2d 541, 542, [1984]; Executive Law § 296 [a]). Though some courts are divided over whether liability attaches to aiding and abetting discrimination conduct ( see, Tomka v. Seiler Corp., 66 F3d 1295, 1313 [2nd Cir. 1995]; Donlon v. Board of Educ. of Greece Cent. School Dist., 2007 WL 4553932 [WD NY 2007]; Peck v. Sony Music Corp., 221 AD2d 157 [1st Dept., 1995]), the Court of Appeals has yet to modify its decision in Patrowich v. Chemical Bank, 63 NY2d 541, 542, [1984] ( see, Donlon v. Board of Educ. of Greece Cent. School Dist., 2007 WL 4553932 [WD NY 2007]).
Here, defendant Bellavia was Arnold Chevrolet's manager and defendant Cohen was the service director. Plaintiff's allegations of state age discrimination and harassment in the complaint against the defendants in their individual capacities do not demonstrate an ownership position or the power to dismiss employees, other than to carry out personnel decisions made by others ( see, Patrowich v. Chemical Bank, 63 NY2d 541, 542, [1984]; Tomka v. Seiler Corp, 66 F3d 1295, 1313 [2nd Cir. 1995]). Therefore, the Court determines plaintiff has again failed to state a cause of action ( see, CPLR § 3211 [a] [7]). Accordingly, the second and third causes of action alleging state human rights claims of age discrimination and harassment under NYSHRL, against defendants Bellavia and Cohen are also dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
Plaintiff's federal claims of age discrimination and harassment at the place of employment against defendants Bellavia and Cohen, are also barred under Patrowich v. Chemical Bank, 63 NY2d 541, 542, [1984] (ruling includes the Federal Age Discrimination in Employment Act ["ADEA"], the Equal Pay Act, and 42 USCA § 2000e, et seq. ["Title VII"]). Though plaintiff does not specifically cite the federal laws upon which he relies as it relates to his factual allegations, he alludes to Title VII and ADEA. Again, plaintiff's complaint against defendants Bellavia and Cohen does not demonstrate an ownership position, or the power to dismiss employees other than to carry out personnel decisions made by others ( see, Patrowich v. Chemical Bank, 63 NY2d 541, 542, [1984]). Therefore, the Court determines plaintiff has failed to state a cause of action ( see, CPLR § 3211 [a] [7]) under Title VII and the ADEA. Accordingly, the first and third causes of action alleging federal claims of age discrimination and harassment under Title VII and ADEA, against defendants Bellavia and Cohen are dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
The federal courts have also determined that individual liability does not attach to age discrimination claims premised under ADEA ( see, Moultrie v. VIP Health Care Servs., 2010 WL 1037693 [ED NY 2010]; Fox v. State Univ. of NY, 497 F Supp 2d 446, 449 [ED NY 2007]; Houston v. Fidelity, 1997 WL 97838 [SD NY 1997]). Nor does individual liability attach to race discrimination claims under Title VII ( 42 U.S.C. § 2000e-2 [a] [1] and § 706 [f] [1]; see also, Tomka v. Seiler Corp, 66 F3d 1295, 1313 [2nd Cir. 1995]; Moultrie v. VIP Health Care Servs., 2010 WL 1037693 [ED NY 2010]; Fox v. State Univ. of NY, 497 F Supp 2d 446, 449 [ED NY 2007]; Houston v. Fidelity, 1997 WL 97838 [SD NY 1997]). The federal courts have applied arguments regarding individual liabilities pursuant to Title VII and ADEA interchangeably ( see, Houston v. Fidelity, 1997 WL 97838 [SD NY 1997] at 8; Storr v. Anderson School, 919 F Supp 144, 148 [SD NY 1996]). They have also held that employee supervisors are not individually liable under Title VII and ADEA ( see, Tomka v. Seiler Corp, 66 F3d 1295 [2nd Cir. 1995], at 1313; Storr v. Anderson School, 919 F Supp 144 [SD NY 1996] at 148).
Here, again, defendants Bellavia and Cohen have been sued in their individual capacities by plaintiff alleging claims of federal age discrimination and harassment at the place of employment. The Court notes that the complaint alleges factual claims which stem from alleged age discrimination exclusively, not from race, color, religion, sex or national origin. This demonstrates a failure to state a claim under Title VII. The complaint also alleges factual claims of individual age discrimination and harassment under ADEA. Therefore, the Court determines that in both instances, plaintiff has failed to state a cause of action ( see, CPLR § 3211 [a] [7]). Accordingly, the first and third causes of action alleging federal claims of age discrimination and harassment under Title VII and ADEA against defendants Bellavia and Cohen are again dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
Defendants seek dismissal of plaintiff's fourth cause of action wherein it asserts common-law negligence in the hiring of defendants Bellavia and Cohen, claiming that the age discrimination allegations are individually actionable against defendants Bellavia and Cohen, and vicariously attributable to Arnold Chevrolet. Defendants argue injuries claimed to arise out of and in the course of employment from negligence, are subject to the exclusive remedy of Workers' Compensation Law ( see, Workers' Compensation Law §§ 10, 11, and 29), thereby precluding common-law suit against defendants.
Plaintiff opposes dismissal pursuant to CPLR § 3211 (a) (7), asserting, inter alia, he has properly stated causes of action in his complaint. He claims defendants' arguments are without merit, and defendants' motion should be denied in its entirety.
It is well settled that "in New York, recovery for accidental injuries arising out of and in the course of employment, including injuries caused by an employer's negligence, is governed by the Workers' Compensation Law" ( see, Hakim v. Hall, 2009 WL 5910310 [SD NY 2009], citing Arroyo v. WestLB Admin., Inc., 54 F Supp 2d 224 [SD NY 1999], affd 213 F3d 625 [2d Cir 2000], quoting O'Brien v. King World Prod., Inc., 669 F Supp 639, 641 [SD NY 1987]). A plaintiff's recovery under the Workers' Compensation Law becomes the exclusive remedy against his employer ( see, Workers' Compensation Law § 11; see also, Arroyo v. WestLB Admin., Inc., 54 F Supp 2d 224 [SD NY 1999] at 232). The statute bars negligence claims against an employer, even where a plaintiff alleges an intentional tort ( see, Ikewood v. Xerox Corp., 2011 WL 147896 [WD NY 2011]).
Here, it is determined that plaintiff's action for negligent hiring arises out of the course of employment of plaintiff by Arnold Chevrolet and is barred by the exclusivity provision of the Workers' Compensation Law ( see, Ikewood v. Xerox Corp., 2011 WL 147896 [WD NY 2011]; Thompson v. Maimonides Med. Ctr., 86 AD2d 867 [2nd Dept., 1982]). Therefore, plaintiff has failed to state a cause of action. Accordingly, the fourth cause of action alleging common-law negligence vicariously attributable to defendant Arnold Chevrolet in the hiring of defendants Bellavia and Cohen is hereby dismissed pursuant to CPLR § 3211 (a) (7) with prejudice.
Defendants' next contention seeks dismissal of plaintiff's fifth and sixth causes of action, which assert claims for intentional infliction of emotional distress and prima facie tort. Defendants argue these actions are time-barred by the one-year statute of limitations for intentional torts. Defendants assert both actions had to be filed within one year of plaintiff's last date of employment, which was October 16, 2008. As the actions were filed on May 28, 2010, defendants aver that both actions must be dismissed. Plaintiff asserts no opposition to this portion of defendants' motion.
It is axiomatic that a statute of limitations starts to run when a cause of action accrues ( see, Glacial Aggregates LLC. v. Town of Yorkshire , 72 AD3d 1644 [4th Dept., 2010]). The statute of limitations for an intentional tort is one year ( see, CPLR § 215). The statute of limitations for the tort of intentional infliction of emotional distress is one year ( see, Canessa v. County of Suffolk, 2010 WL 1438822 [ED NY 2010]; Dinerman v. City of NY Admin. for Children's Servs ., 50 AD3d 1087 [2nd Dept., 2008]). The statute of limitations for a prima facie tort is one year ( see, Yong Wen Mo v. Gee Ming Chan , 17 AD3d 356 [2nd Dept., 2005]), including an intentional tort not specifically listed in CPLR § 215 (3) ( see, Havell v. Islam, 292 AD2d 216 [1st Dept., 2002]; Gallagher v. Director's Guild of Am., 144 AD2d 261, 262-263 [1st Dept., 1988], lv denied 73 NY2d 708).
Here, a reading of the fifth and sixth causes of action disclose they allege intentional infliction of emotional distress and the essence of a prima facie intentional tort, respectively. Plaintiff's allegations demonstrate he was fired from his employment with Arnold Chevrolet on October 16, 2008. Therefore, both causes of action had one-year statutes of limitations accruing from October 16, 2008. The record discloses both actions were filed on May 28, 2010, over seven months beyond the required filing time. Accordingly, plaintiff's fifth and sixth causes of action against defendants Arnold Chevrolet, Bellavia, and Cohen for intentional infliction of emotional distress and prima facie tort are time-barred and are hereby dismissed pursuant to CPLR § 3211 (a) (5) with prejudice.
It is noted that plaintiff asserts in his complaint that he filed a complaint with the New York State Division of Human Rights ("NYSDHR") and a "right to sue" letter issued by NYSDHR is attached to his complaint as Exhibit "A1." However, a review of plaintiff's submissions do not reveal Exhibit A1, nor does it reveal a "right to sue" letter issued by NYSDH or any other agency. Plaintiff's complaint further states that "The New York State Division of Human Rights issued a Notice of Right to Sue' dated October 30, 2008." A further review of plaintiff's papers does not reveal a Notice of Right to Sue issued by NYSDHR dated October 30, 2008.
The Court, in any event, is dubious as to the existence of such a letter. As previously indicated herein, NYSDHR issued a Determination and Order dated March 31, 2010, under Case No. 10129185, and under Federal Charge (EEOC) No. 16GA900584, finding that "there is NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." Thereafter, NYSDHR ordered the dismissal of the filed complaint and closed the file. NYSDHR further informed plaintiff that he had the right to appeal the decision by filing a Notice of Petition and Petition, with the Supreme Court of the State of New York, in the County where the alleged unlawful discriminatory practice took place, within sixty (60) days after service of the determination, with a copy of the Notice of Petition and Petition to all parties including the General Counsel of NYSDH ( see, Executive Law § 298; 22 NYCRR § 202.57). This was not done.
NYSDHR's written decision also informed plaintiff that he had the right to have EEOC review the written NYSDHR Determination and Order of March 31, 2010, which was required in writing within 15 days of his receipt of the written determination by NYSDHR, or the EEOC would generally adopt the action of the NYSDHR in the ADEA case. This was also not done. Under section 297 of the Executive Law, an aggrieved individual must make "a choice of instituting either a judicial or administrative proceeding. He may not, however, resort to both forums; having invoked one procedure, he has elected his remedies" ( Koster v. Chase Manhattan Bank, N.A., 609 F Supp 1191, 1196 [SD NY 1985] at 1196). Plaintiff's filing of an administrative complaint with NYSDHR "cut off the complainant's right to resort to the courts to redress state human rights violations" ( id. at 1196). Under these circumstances, as a matter of law, NYSDHR would be precluded from issuing a "right to sue" letter.
Moreover, plaintiff's sworn statement asserts that NYSDHR issued a "Notice of Right to Sue" dated October 30, 2008. This would also be impossible, as NYSDHR's completed investigation did not occur until one year and five months later, when it issued its Determination and Order dated March 31, 2010, dismissing the filed complaint and closing their case.
The relevance of a "right to sue" letter manifests as a condition precedent to the commencement of a Title VII action ( see, Romney v. New York City Tr. Auth., 294 AD2d 481 [2nd Dept., 2002]; 42 USC § 2000e-5 [f] [1]). Indeed, a plaintiff must exhaust his administrative remedies as a precondition to bringing a Title VII action ( see, Sworn v. Western New York Children's Psych. Ctr., 269 F Supp 2d 152 [WD NY 2003]). The EEOC must issue a "right to sue" letter indicating that it has terminated its investigation or that 180 days have passed since the filing of charges and EEOC has taken no action ( see, 42 USC § 2000e-5[f]). In addition, a plaintiff must commence a Title VII action within 90 days of receipt of a "right to sue" letter from EEOC ( see, 42 USC § 2000e-5; Romney v. New York City Tr. Auth., 294 AD2d 481 [2nd Dept., 2002]).
Here, the complaint fails to demonstrate that plaintiff exhausted his administrative remedies prior to bringing the Title VII action. Plaintiff neither appends a "right to sue" letter from the EEOC, nor refers to it ( see, Briggs v. Women in Need, Inc., 2010 WL 2076981 [ED NY 2010]; Crisci-Balestra v. Civil Serv. Empls. Assn., 2008 WL 413812 [ED NY 2008]). Moreover, plaintiff has failed to demonstrate that the Title VII action was commenced within 90 days of receipt of a "right to sue" letter from the EEOC ( see, 42 USC § 2000e-5 [f] [1]; see also, 29 CFR § 1614.407; see, Hudson v. Potter, 497 F Supp 2d 491 [WD NY 2007]). Therefore, the Court determines, sua sponte, that plaintiff has failed to exhaust his administrative remedies before suit under Title VII of the Civil Rights Act of 1964 ( see, 42 USC § 2000e-5 [f] [1] and § 706 [f] [1] ["Title VII"]), depriving the Court of jurisdiction. Plaintiff has also failed to state a cause of action. Accordingly, plaintiff's First and Third causes of action against defendant Arnold Chevrolet, alleging federal claims of age discrimination and harassment under Title VII are dismissed, sua sponte, pursuant to CPLR § 3211 (a) (2) and (a) (7).
Though plaintiff must exhaust all of his administrative remedies prior to bringing an ADEA action also ( see, Moultrie v. VIP Health Care Servs., 2010 WL 1037693 [ED NY 2010]), no "right to sue" letter is needed in ADEA cases ( see, McPherson v. New York City Dept. of Educ., 457 F3d 211 [2nd Cir., 2006]; Briggs v. Women in Need, Inc., 2010 WL 2076981 [ED NY 2010]). Plaintiff's compliance with the EEOC exhaustion requirement does not insulate a suit from dismissal as untimely, but "there is no clear statutory answer as to what time period governs [plaintiff's] bringing of suit or when that time period starts" ( McPherson v. New York City Dept. of Educ., 457 F3d 211 [2nd Cir., 2006] at 215).
Here, since federal claims of age discrimination and harassment under ADEA do not require a "right to sue" letter from the EEOC, plaintiff's complaint alleging the remaining claims of age discrimination and harassment under ADEA against defendant Arnold Chevrolet, does not suffer from this infirmity.
Finally, defendants move for dismissal of plaintiff's first and third causes of action, wherein plaintiff asserts claims against defendant Arnold Chevrolet for violations of federal law prohibiting age discrimination and harassment, respectively. Defendants assert that both actions are barred as a matter of law based upon the prior determination by an arbitrator of plaintiff's grievance under the collective bargaining agreement ("CBA"). Defendants argue the same facts and circumstances were argued by plaintiff in the arbitration, and both sides had a full and fair opportunity to be heard. The arbitrator ruled Arnold Chevrolet had "just cause" to terminate plaintiff, thereby sustaining and affirming the discharge of plaintiff. The arbitrator also found the grievance filed by plaintiff to be "wholly without substance or merit."
Plaintiff opposes dismissal pursuant to CPLR § 3211 (a) (7), asserting, inter alia, he has properly stated causes of action in his complaint. He claims defendants' arguments are without merit and defendants' motion should be denied in its entirety.
Defendants cite Collins v. NY Tr. Auth., 305 F3d 113 (2nd Cir., 2002) in support of dismissal. They assert the Second Circuit of the U.S. Court of Appeals upheld the District Court's decision to dismiss plaintiff's case under Title VII and State discrimination claims, based upon the findings of an arbitration board under the collective bargaining agreement, which was given great weight by the Court. The arbitration decision had upheld the employment termination of plaintiff. Defendants allege the instant matter parallels the circumstances of Collins v. NY Tr. Auth., 305 F3d 113 (2nd Cir., 2002) and should be followed by this Court.
In Collins v. NY Tr. Auth., 305 F3d 113 (2nd Cir., 2002), the appeals Court upheld the District Court's dismissal by summary judgment, finding plaintiff had failed to establish a prima facie case of discrimination. The Court held that the arbitration decision had probative weight in its granting of defendant's motion. The Court indicated the weight to be given an arbitration is generally left to the discretion of the court and depends upon the facts of each particular case ( id. at 119). The Court further stated that a "plaintiff, to survive a motion for summary judgment, must present strong evidence that the [arbitration] decision was wrong as a matter of fact-e.g. new evidence not before the tribunal-or that the impartiality of the proceedings was somehow compromised" ( id. at 119).
In the instant matter, defendants have not moved for summary judgment pursuant to CPLR § 3212, as occurred in Collins v. NY Tr. Auth., 305 F3d 113 (2nd Cir., 2002), but for dismissal pursuant to CPLR § 3211. A motion for summary judgment seeks a court determination based upon the absence of material issues of fact for trial, and assumes a complete evidentiary record is before the court ( see, Nonnon v. City of New York , 9 NY3d 825 at 827). A motion for summary judgment generally must be made after issue is joined ( see, CPLR § 3212 [a]). However, a court may convert a CPLR § 3211 motion to summary judgment under CPLR § 3211 [c], prior to issue being joined, provided the court gives ample notice to the parties to "make a complete record and to come forward with evidence that could be considered" ( Nonnon v. City of New York , 9 NY3d 825 , at 826; see also, Mihlovan v. Grozavu, 72 NY2d 506).
Here, the Court determines that though issue has not been joined, defendants are not entitled to dismissal pursuant to Collins v. NY Transit. Auth., 305 F3d 113 (2nd Cir., 2002), as defendants have not moved for summary judgment, but rather dismissal. However, the Court is inclined to convert defendants' motion for dismissal to one for summary judgment ( see, CPLR § 3211 [c]; Nonnon v. City of New York , 9 NY3d 825 , at 827; Mihlovan v. Grozavu, 72 NY2d 506, at 508; Russo v. Macchia-Schiavo , 72 AD3d 786 [2nd Dept., 2010]). Accordingly, that portion of defendants' motion which seeks dismissal pursuant to CPLR § 3211 of plaintiff's first and third causes of action, wherein plaintiff asserts claims against Arnold Chevrolet for violations of federal law prohibiting age discrimination and harassment, respectively, under the ADEA, is converted to a motion for summary judgment pursuant to CPLR § 3211 (c). All parties are put on notice and directed to "make a complete record and come forward with evidence that could be considered" ( Nonnon v. City of New York , 9 NY3d 825 at 826) on a motion for summary judgment pursuant to CPLR § 3212 by serving and filing additional affidavits and other supporting papers no later than sixty days from the date of this order. Upon the expiration of the sixty day period, the defendants may re-notice this portion of the motion to be heard on five days' notice. Upon the service and filing of such notice, the defendants shall also serve upon the Clerk a copy of this order; upon receipt thereof, the Clerk shall assign the motion a new sequence number.
Based on the foregoing, it is
ORDERED that the motion by defendants for an order pursuant to CPLR § 3211 (a) (2), (5), (7), and (8) dismissing the complaint is granted to the extent of dismissing the plaintiff's second, fourth, fifth, and sixth causes of action in their entirety, dismissing the plaintiff's first and third causes of action as against defendants Frank Bellavia and Mark Cohen, dismissing the plaintiff's first and third causes of action insofar as they plead state human rights claims of age discrimination and harassment under NYSHRL and federal claims of age discrimination and harassment under 42 USC § 1981 and Title VII against defendant Arnold Chevrolet, LLC, converting the motion insofar as it is addressed to the remaining portion of the plaintiff's first and third causes of action to a motion for summary judgment pursuant to CPLR § 3211 (c) and adjourning it in accordance with the foregoing, and is otherwise denied.