Rudzinski v. Jonathan L. Glashow, MD, PC
| Decision Date | 01 May 2017 |
| Docket Number | No. 502170/16.,502170/16. |
| Parties | Janine A. RUDZINSKI, Plaintiff, v. JONATHAN L. GLASHOW, MD, PC, Lael Carter and Jonathan L. Glashow, Defendants. |
| Court | New York Supreme Court |
Gulsah Senol, Esq., Akin Law Group PLLC, New York, Attorney for Plaintiff.
Jason A. Storipan, Esq, Fisher & Phillips, LLP, Murray Hill, NJ, Attorney for Defendant Glashow.
Philip L. Fraietta, Esq., Bursor & Fisher, P.A., New York, Attorney for Defendant Carter.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of defendant Lael Carter (hereinafter Carter) filed on November 30, 2016 under motion sequence number four, for an order: (1) striking the amended complaint of plaintiff Janine A. Rudzinski (hereinafter plaintiff or Rudzinski) pursuant to CPLR 3024(b), or in the alternative (2) for an order dismissing the amended complaint pursuant to CPLR 3211(a)(7).
Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of defendants Jonathan L. Glashow, M.D., PC and Jonathan L. Glashow (hereinafter the Glashow defendants) filed on November 30, 2016 under motion sequence number five, for an order dismissing the amended complaint pursuant to CPLR 3211(a)(7).
Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of the Glashow defendants filed on December 1, 2016 under motion sequence number six, for an order staying the action and compelling arbitration pursuant to CPLR 7503.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of defendant Carter filed on January 12, 2017 under motion sequence number seven, for an order staying the action and compelling arbitration pursuant to CPLR 7503.
On February 17, 2016, Rudzinski commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On March 9, 2016, Carter and the Glashow defendants filed a notice of removal of the instant action to the United States District Court for the Eastern District of New York with the KCCO. By order dated April 29, 2016 and filed with the KCCO on June 26, 2016, United States District Court Judge Sterling Johnson remanded the action back to the Kings County Supreme Court with the consent of Carter and the Glashow defendants.
Plaintiff's amended verified complaint contains one hundred and fifty six allegations of fact in support of seven causes of action. The first cause of action claims discrimination in violation of New York State Executive Law § 296. The second is for unlawful retaliation in violation of New York State Executive Law § 296(7). The third is for discrimination in violation of the Administrative Code of the City of New York § 8–107(1). The fourth is for unlawful retaliation in violation of the Administrative Code of the City of New York § 8–107(1)(e). The fifth is for intentional infliction of emotional distress (hereinafter IIED). The sixth is for assault and battery. The seventh is for violations of the New York State Labor Law § 663.
The amended verified complaint alleged the following salient facts, among others. On May 5, 2015, the Solomon Page Group employment agency placed the plaintiff for a job with Jonathan L. Glashow, M.D., PC. The employment began with a temporary probationary period which was to last for three months. Carter interviewed and hired the plaintiff as her executive assistant. The job site was at 737 Park Avenue, Suite 1C, New York, New York. Plaintiff was paid through Solomon Page Group at the rate of fifteen dollars per hour.
As her direct supervisor, Carter had the authority to hire, fire, promote and sanction the plaintiff. Carter used her position and authority to immediately commence targeting the plaintiff for discrimination based on her sex, gender and heterosexual orientation. Carter communicated her personal interest in the plaintiff and made numerous intrusive inquiries about her personal life and sexual history. Carter revealed her bi-sexual orientation to the plaintiff in the course of repeated and unwanted sexual advances. Carter printed out and handed the plaintiff a copy of her personal profile from a website geared toward BDSM.3 Carter advised the plaintiff to fill out a checklist about her own BDSM preferences. Carter also repeatedly talked to the plaintiff about the BDSM sexual practices that she and her husband engaged in with other people.
Plaintiff's probationary period was set to expire in August of 2015. Carter used her supervisory position to pressure the plaintiff into moving into her home on a temporary basis. The pressure included reprimanding plaintiff about her job performance and advising her if she agreed to stay at Carter's home, her performance would be viewed more favorably. Carter also threatened to terminate plaintiff's employment if she did not move into her home. Plaintiff ultimately acquiesced to the pressure and moved in. Thereafter, Carter continued to harass the plaintiff at work and in Carter's home. While in Carter's home, Carter's husband also began harassing the plaintiff by groping her breasts and forcibly kissing her without her consent.
At some point the plaintiff complained to a co-worker named Ms. Juhi regarding Carter's conduct. Ms. Juhi attempted to mediate the issue between plaintiff and Carter. Dr. Glashow became aware of plaintiff's claim regarding Carter's harassing conduct and involved his attorneys to investigate the matter. Plaintiff was unable to proceed with the investigation because of the severe emotional distress suffered as a result of Carter's conduct. Dr. Glashow then used her alleged failure to cooperate as a pretext for firing her. Plaintiff also claims that although she had worked over forty hours a week she was not properly compensated for her overtime work.
By decision and order dated September 16, 2016 (hereinafter the September 2016 order), the Court granted two prior motions of the defendants to strike the verified complaint filed under motion sequence number one and two to the extent of striking paragraph 46, and section k and q of paragraph 75. The Court also directed the plaintiff to file an amended verified complaint by October 20, 2016, and to correct all the typographical errors pointed out in the original verified complaint. The defendants were advised that they were free to make any appropriate motions relating to the amended verified complaint as if their motions under sequence number one and two had never been made.
Carter's motion pursuant to CPLR 3024(b)
The first branch of Carter's motion sequence number four seeks an order striking the amended verified complaint pursuant to CPLR 3024(b) on the basis that Rudzinski did not comply with the Court's September 2016 order. Carter annexed a copy of the transcripts of the proceedings which yielded the September 2016 order but did not include a copy of the order or the complete set of motion papers which yielded that order to the instant motion. These documents would have been necessary to determine this branch of Carter's motion. By not including same Carter did not comply with the requirements of CPLR 2214(c) and the motion may be denied for this reason alone (see Wells Fargo Home Mortg., Inc. v. Mercer, 35 A.D.3d 728, 829 N.Y.S.2d 123 [2nd Dept 2006]citing Alizio v. Perpignano, 225 A.D.2d 723, 724–725, 640 N.Y.S.2d 191 [2nd Dept 1996] ).
CPLR 3024(b) permits a party to make a motion to strike a scandalous or prejudicial matter unnecessarily inserted in a pleading (see Aronis v. TLC Vision Ctrs., Inc., 49 A.D.3d 576, 578, 853 N.Y.S.2d 621 [2nd Dept 2008] ). In reviewing a motion to strike scandalous or prejudicial matter unnecessarily inserted in a pleading, the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action ( Irving v. Four Seasons Nursing and Rehabilitation Center, 121 A.D.3d 1046, 995 N.Y.S.2d 184 [2nd Dept 2014] ). Striking of the entire pleading is not an available remedy under CPLR 3024(b). The movant may only strike that portion of the pleading that contains the unnecessarily scandalous and prejudicial matter. As Carter sought only to strike the entire complaint and did not specify which paragraphs were scandalous or prejudicial the motion is denied on the merits.
Carter's motion pursuant to CPLR 3211(a)(7)
The second branch of Carter's motion sequence number four seeks dismissal of the amended verified complaint pursuant to CPLR 3211(a)(7). For this branch of the motion, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Bibbo v. Arvanitakis, 145 A.D.3d 657, 659, 44 N.Y.S.3d 448 [2nd Dept 2016] ).
"A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Gawrych v. Astoria Federal Savings and Loan, ––– NYS3d ––––, 148 A.D.3d 681, 48 N.Y.S.3d 450, 2017 N.Y. Slip Op. 01538 [2nd Dept 2017]citing Well v. Yeshiva...
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