Berry v. Ambulance Service of Fulton County, Inc.

• Decision Date: 26 April 2007
• Docket Number: 501596.
• Citation: 2007 NY Slip Op 03623,39 A.D.3d 1123,834 N.Y.S.2d 396
• Parties: LISA BERRY, Respondent, v. AMBULANCE SERVICE OF FULTON COUNTY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 1123

834 N.Y.S.2d 396

2007 NY Slip Op 03623

LISA BERRY, Respondent, v. AMBULANCE SERVICE OF FULTON COUNTY, INC., Appellant.

501596.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 26, 2007.

Appeal from an order of the Supreme Court (Giardino, J.), entered May 11, 2006 in Fulton County, which denied defendant's motion to dismiss the complaint.

Kane, J.

As a result of being charged with the crime of burglary in the City of Gloversville, Fulton County, plaintiff was suspended without pay from her position as a critical care technician for defendant on February 22, 2005. Following the dismissal of those charges in their entirety in June 2005, plaintiff made multiple requests to her employer for authorization to return to work. Inasmuch as those requests went unanswered, plaintiff commenced this action on December 16, 2005, seeking, in addition to her legal costs, back pay with interest as of February 25, 2005. She subsequently received a termination notice from defendant, dated January 17, 2006, informing her that her services as an "at will" employee had been terminated by action of her employer on November 22, 2005, with such termination "effective immediately." Approximately two weeks later, defendant submitted a motion to Supreme Court seeking the dismissal of plaintiff's complaint for failure to state a cause of action. Supreme Court denied defendant's motion, prompting this appeal.

We affirm. When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), a court "must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiff[] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). Here, despite defendant's valid contention that an employer may generally terminate an at-will employee at any time, plaintiff has sufficiently alleged that her suspension and termination were related to a legal action she commenced against her employer pursuant to title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.). Plaintiff's complaint alleges that defendant's stated reason for her suspension had no basis in fact or law. Plaintiff further alleges, by means of letters referenced in her complaint and attached to her affidavit on the motion, that defendant levied burglary charges against her, for the alleged theft of office documents associated with her employment, in direct retaliation for allegations that she had asserted against her immediate supervisor. Inasmuch as such assertions adequately allude to...