Horowitz v. Aetna Life Ins.
| Decision Date | 20 March 1989 |
| Citation | 148 A.D.2d 584,539 N.Y.S.2d 50 |
| Parties | Marc S. HOROWITZ, Appellant v. AETNA LIFE INSURANCE, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Mary D. Dorman, New York City, for appellant.
Sullivan & Cromwell, New York City (John F. Cannon and Mark V. Holmes, of counsel), for respondents.
Before BROWN, J.P., and GERALDINE T. EIBER, SYBIL HART KOOPER and VINCENT R. BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for intentional infliction of emotional distress and violation of Executive Law § 296, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered December 11, 1987, as, upon reargument, adhered to its original determination to grant the defendants' motion to dismiss the complaint and denied that branch of the plaintiff's motion which sought leave to amend the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff filed a complaint dated December 6, 1985, with the State Division of Human Rights pursuant to Executive Law (Human Rights Law) § 297, claiming that his employer, the defendant, American Re-Insurance Company (hereinafter Am-Re), had discriminated against him because he was Jewish, unmarried, gay and perceived as having AIDS or being at risk for AIDS. In addition, he alleged that Am-Re discriminated against him as retaliation for previously having accused his supervisor of making anti-Semitic comments. The purportedly discriminatory actions taken by the plaintiff's employer included transfers to new positions not specifically related to his previous training and experience, singling the plaintiff out for harassment about absences for legitimate, documented health reasons and denying his requests for tuition reimbursement for job-related courses.
The statutory complaint further claimed that the plaintiff's supervisor directed anti-homosexual epithets at him when in his presence. Ultimately, because he found his work environment to be increasingly hostile, the plaintiff resigned effective September 1985.
In August 1986 the plaintiff commenced the instant action claiming that the defendants Aetna and Am-Re had intentionally subjected him to emotional distress, engaged in employment discrimination and wrongfully discharged him. The complaint further claimed that two former supervisors had slandered him by commenting that he had AIDS and that he had granted favorable terms to other men based on his sexual interest in them.
The defendants moved, to dismiss the plaintiff's complaint on the grounds that the claims of emotional distress, employment discrimination and wrongful discharge failed to state a cause of action and that the claims of slander were time barred. The plaintiff did not interpose papers in opposition to the motion. The Supreme Court granted the motion. The plaintiff then moved "for leave to reargue", vacatur of the order, and for leave to amend the complaint to add a cause of action for breach of contract and breach of the implied covenant of good faith and fair dealing. The Supreme Court granted the motion to the extent that it granted "reargument", i.e., reconsideration of the motion. Upon reconsideration, the court adhered to its original determination to dismiss the action. In all other respects the court denied the motion.
The Supreme Court properly dismissed the plaintiff's complaint and denied that branch of the plaintiff's motion which sought to amend the complaint. The Supreme Court lacked subject matter jurisdiction over the plaintiff's claim for employment discrimination and wrongful discharge. Pursuant...
To continue reading
Request your trial
-
Borum v. Village of Hempstead
...Bank of New York, 58 F.3d 879, 882-83 (2d Cir. 1995); White v. Home Depot, 2008 WL 189865 *3 (E.D.N.Y.2008); Horowitz v. Aetna Life Ins., 148 A.D.2d 584, 539 N.Y.S.2d 50, 52 (1989). Where there is a "sufficient identity of issue" between the Agency complaint and the court action, the subseq......
-
Philbert v. City of New York
...... major life activities." 42 U.S.C. § 12102(1)(A). "[M]ajor life activities ... See Bollinger v. New York State Ins. Fund, 726 Fed.Appx. 828, 831 (2d. Cir. 2018) (summary order) ... under the election of remedies doctrine); Horowitz v. Aetna Life Ins., 539 N.Y.S.2d 50, 52 (NY. App. Div. 1989) ......
-
Philbert v. City of New York
...... major life activities." 42 U.S.C. § 12102(1)(A). "[M]ajor life activities ... See Bollinger v. New York State Ins. Fund, 726 Fed.Appx. 828, 831 (2d. Cir. 2018) (summary order) ... under the election of remedies doctrine); Horowitz v. Aetna Life Ins., 539 N.Y.S.2d 50, 52 (NY. App. Div. 1989) ......
-
Goyette v. DCA Advertising Inc., No. 91 Civ. 3518 (KC)
...Rights Law committed by the subsidiary unless the subsidiary has no real corporate independence. Horowitz v. Aetna Life Insurance, 148 A.D.2d 584, 539 N.Y.S.2d 50, 53 (2nd Dept. 1989). Since the plaintiffs have not submitted any evidence to support the contention that the corporate relation......