Miloscia v. B.R. Guest Holdings Llc

33 Misc.3d 466

928 N.Y.S.2d 905

2011 N.Y. Slip Op. 21300

Michael MILOSCIA, Plaintiff,

v.B.R. GUEST HOLDINGS LLC, and Pamela Friedl, Defendants/Third–Party Plaintiffs,Metropolitan Transportation Authority, City of New York, and New York City Transit Authority, Third–Party Defendants.

Supreme Court, New York County, New York.

Aug. 15, 2011.

John Coffey, Esq., Coffey & Coffey, LLP, Of Counsel to Wallace D. Gossett, Esq., Brooklyn, for defendants MTA/NYCTA.Fox Rothschild LLP by Ernest E. Badway, Esq., Lauren J. Talan, Esq., New York, for Defendants/Third–Party Plaintiffs BR Guest Holdings, LLC & Friedl.David L. Scher, Esq., Block, O'Toole & Murphy, LLP, New York, for Plaintiff (cross motion).Ravi Sattiraju, Esq., The Sattiraju Law Firm, PC, Lynbrook, on the brief.John Coffey, Esq. Coffey & Coffey, LLP, Brooklyn, for defendants MTA/NYCTA.MICHAEL D. STALLMAN, J.

In this action, plaintiff Michael Miloscia (Miloscia) sues his former employer to recover damages for alleged disability-based employment discrimination, and for breach of an agreement to provide him with benefits. Defendants/third-party plaintiffs B.R. Guest Holdings LLC and Pamela Friedl (together, BR Guest or defendants) brought a third-party complaint against Metropolitan Transportation Authority, City of New York, and New York City Transit Authority (collectively, the Transit Authority or third-party defendants) for contribution and indemnification. The Transit Authority now moves to dismiss the third-party complaint for failure to state a cause of action (motion seq. No. 007), and BR Guest cross-moves for summary judgment on the relief sought in the third-party complaint. By separate motion (seq. # 008), BR Guest moves for summary judgment dismissing the complaint, and plaintiff cross-moves to strike defendants' answer, or alternatively, to compel further discovery. The motions are consolidated for purposes of their disposition.

BACKGROUND

The relevant facts in this case are largely undisputed. Plaintiff Miloscia was hired by BR Guest to work as a manager at Vento restaurant, commencing on April 28 or 29, 2009. See Offer Letter dated April 22, 2009, Ex. J to Badway Aff. in Support of Defendants' Motion (Badway Aff.); Employee Lifecycle Administration Request, Ex. E to Badway Aff. Defendant Pamela Friedl (Friedl), then BR Guest's Corporate Recruiter, recruited plaintiff, and, according to plaintiff, offered him the job. Friedl Dep., Ex. 2 to Scher Aff. in Support of Plaintiff's Cross Motion (Scher Aff.), at 47; Miloscia Dep., Ex. 3 to Scher Aff., at 65.¹ Plaintiff then signed a letter agreement, offering him the manager's position, which provided, among other things, that he became eligible for health insurance benefits “effective the first of the month following three months of employment,” that is, on or about August 1, 2009. See Offer Letter, Ex. J to Badway Aff. There is no dispute that, up until the date that he was injured, plaintiff performed his job satisfactorily.

Early in the morning of July 16, 2009, after socializing at a bar with a co-worker, JC Shurts (Shurts), plaintiff was hit by a bus, owned and/or operated by third-party defendants. He sustained severe injuries, which required emergency treatment and hospitalization. On the date of the accident, plaintiff's mother, Margaret Miloscia, notified defendants that plaintiff was unable to report to work because of his injuries. See Aff. of Margaret Miloscia, Ex. V to Badway Aff., ¶ 4. The same day, Shurts also notified Wendy Schlazer, BR Guest's Vice President of Operations, that plaintiff had been in an accident and would not be at work. Shurts Aff., Ex. L to Badway Aff; Schlazer Dep., Ex. O to Badway Aff., at 50. Over the days and weeks following plaintiff's accident, plaintiff's mother had several conversations with employees of BR Guest, and, while the details of what was said during those conversations are disputed, it is not disputed that plaintiff's mother informed the employees that plaintiff did not expect to be able to return to work for approximately three to six months. See Margaret Miloscia Aff., ¶ 5; Friedl Dep., Ex. N to Badway Aff., at 62; Schlazer Dep., Ex. O to Badway Aff., at 60–61. Plaintiff also informed Shurts, in e-mail exchanges, that he needed three to six months to recover. Miloscia Dep., Ex. 3 to Scher Aff., at 77, 81; see E-mails, Ex. Q to Badway Aff.

During July and early August 2009, Margaret Miloscia had several conversations with Rich Mangual (Mangual), then BR Guest's Director of Human Resources Information Systems and Benefits, about medical benefits for her son. See Mangual Dep., Ex. 6 to Scher Aff., at 24, 105–106; Margaret Miloscia Aff., ¶¶ 5, 9. Specifically, on August 4, 2009, plaintiff's mother spoke with Mangual about obtaining health care benefits, and was advised that there were various packages available to plaintiff. Margaret Miloscia Aff., ¶ 10; Mangual Dep., Ex. 6 to Scher Aff., at 89, 109; Friedl Dep., Ex. 2 to Scher Aff., at 84–85. The same day, after learning that Mangual had been speaking with Margaret Miloscia about health insurance packages, Friedl called plaintiff's mother and informed her that “we had to let Michael go because he cannot work” and “he abandoned his position.” Friedl Dep., Ex. 2 to Scher Aff., at 86; Margaret Miloscia Aff., ¶ 11. Friedl testified that she then informed plaintiff's mother that “he is eligible for rehire. He can come back whenever he wants and we will find a place for him.” Friedl Dep., Ex. 2 to Scher Aff., at 86. By letter dated August 5, 2009, Friedl reiterated that plaintiff's employment with BR Guest was terminated effective July 16, 2009. See Aug. 5, 2009 letter, Ex. T to Badway Aff. Subsequently, in November 2009, Friedl sent a letter to Miloscia, inquiring about his recovery, and informing him that defendants were willing to work with him to find him a position in one of BR Guest's New York City properties. See Letter dated Nov. 2, 2009, Ex. X to Badway Aff.

Plaintiff's mother attests that, prior to August 4, 2009, defendants did not notify her that plaintiff's employment was terminated. Margaret Miloscia Aff., Ex. V to Badway Aff., ¶ 12. Miloscia testified that it was his understanding that he was terminated on August 4, 2009, “and then at some point along the way, it got backdated to another date.” Miloscia Dep., Ex. 3 to Scher Aff., at 202. Defendants dispute these claims. Schlazer testified that, a few days after plaintiff's accident, she reached out to plaintiff's mother to express her concern and to find out what was going on, and when she found out that plaintiff would be in the hospital for a couple months, she told plaintiff's mother that she would need to “separate employment, because [she] would need to replace him for coverage in the restaurant.” Schlazer Dep., Ex. 5 to Scher Aff., at 60–61. Friedl also testified that, although she was not on the call with Schlazer and Margaret Miloscia, it was her “impression” that plaintiff was terminated during the call, which occurred on or about July 21, 2009. Friedl Dep., Ex. 2 to Scher Aff., at 69, 66. Friedl further testified that she prepared contemporaneous notes summarizing Schlazer's telephone conversation with Margaret Miloscia, which indicate that plaintiff's mother was told that they needed “to take [plaintiff] off the schedule and hire another manager for now.” Id., at 67–68; see Notes dated Tuesday 7/21, annexed to Friedl Dep. as Friedl's Ex. 5. Friedl testified that, after Schlazer's telephone call, she had discussions with other human resources employees, including Mangual, about possible leave options for plaintiff, but they decided that plaintiff did not qualify for any leave under BR Guest's policies, because he had not been employed for three months. Friedl Dep., Ex. 2 to Scher Aff., at 69–70, 76–77. According to Friedl, after these discussions, she, Mangual, and other employees came to the conclusion that plaintiff had to be separated. Id. at 81. Friedl could not say that the decision was made by one person, and testified that it was not as much a decision “as it was just a conclusion.” Id. at 72–73.

Plaintiff commenced the instant action in December 2009. The complaint alleges that defendants discriminated against him based on disability, in violation of the New York City Human Rights Law (Administrative Code of the City of New York [Admin. Code] § 8–101 et seq.) (NYCHRL), and the New York State Human Rights Law (Executive Law § 290 et seq.)(NYSHRL), by failing to provide a reasonable accommodation or to engage in an interactive process to determine whether plaintiff could be provided with a reasonable accommodation. Plaintiff also alleges that defendants breached a contract, or an implied contract, by failing to provide plaintiff with medical benefits after three months of employment, as set forth in defendants' letter offering employment to plaintiff.

Defendants contend that they are entitled to summary judgment dismissing the complaint, on the grounds that plaintiff was unable to perform the essential functions of his job, with or without an accommodation, that he failed to request an accommodation, and that defendants offered him a reasonable accommodation which he refused. Defendants move to dismiss the breach of contract/breach of implied contract claim on the grounds that plaintiff was an at-will employee, with no contractual rights, and he did not meet the requirements for obtaining benefits. Defendants also assert that defendant Friedl cannot be held individually liable because she did not make the decision to terminate plaintiff's employment, and made no decisions regarding his eligibility for benefits.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Seq.# 008)

It is well settled that to prevail on a motion for summary judgment, the movant must establish its entitlement to judgment as a matter of law, by submitting evidentiary proof in admissible form sufficient to demonstrate the absence of any...