Stern v. Milestones Psychology Grp.
| Decision Date | 16 November 2021 |
| Docket Number | Index 654602/2020 |
| Citation | 2021 NY Slip Op 32382 (U) |
| Parties | MICHELLE STERN, Plaintiff v. MILESTONES PSYCHOLOGY GROUP, PLLC, KIRSTEN CULLEN SHARMA, and LAURA KIRMAYER, Defendants |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION- AND ORDER
Defendants move to dismiss the amended verified complaint's seventh cause of action based on documentary evidence and failure to state a claim. C.P.L.R. § 3211(a)(1) and (7). Upon such a motion, the court considers the facts alleged in the complaint and presumes them to be true. Himmelstein McConnell, Gribben, Donocrhue & Joseph, LLP, v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 (2021); Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017); Seaman v. Schulte Roth & Zabel LLP, 176 A.D.3d 538, 538 (1st Dep't 2019).
According to the amended verified complaint, plaintiff was employed by defendant Milestones'Psychology Group, PLLC, as a mental health therapist from June 25, 2018, to January 15, 2020. Am. V. Compl., NYSCEF No. 17, ¶¶ 4, 13. Milestones is a psychology practice that specializes in working with children and their families and schools from preschool through college. Id. ¶ 6. Defendant.Kirsten Cullen Sharma, Psy.D., is an owner of Milestones and works for it as a clinical.psychologist. Id. ¶¶ 7-9. Defendant Laura Kirmayer, Ph.D., M.S.W., works for Milestones as a clinical psychologist and was plaintiff's direct supervisor. Id. ¶¶ 10-12.
Plaintiff worked for Milestones pursuant to an employment. agreement that provided she would receive 35% of the payments collected for her clinical services until she became a Licensed Clinical Social Worker (LCSW), at which point she would receive 50% of the payments collected for her services. Id. ¶114, 20. To acquire the LCSW. designation, plaintiff, who already held a Masters of Social Work degree, was required to obtain a Licensed Master of Social Work (LMSW) designation, which she obtained in April 2019, and to complete 2, 000 hours of supervised clinical social work in diagnosis, psychotherapy, and assessment-based treatment plans. Id. ¶ 18; 8 N.Y.C.R.R. §'74.3(a). Milestones was to provide plaintiff a qualified supervisor so plaintiff could complete the 2, 000 hours of supervised clinical social wo'rk experience.required for the LCSW designation.
Milestones assigned Kirmayer as plaintiff's supervisor. Am. V. Compl. ¶ 19. Since Kirmayer was not a qualified supervisor, plaintiff s clinical hours that Kirmayer supervised will not count toward the licensing requirements. Id. ¶¶ 10-12.
Plaintiff discovered Kirmayer was not a qualified supervisor only after plaintiff's employment with Milestones ended January 16, 2020. Id. ¶ 22. In addition to plaintiff's claims challenging her termination based on discrimination, due to her pregnancy and disability in .violation of New York City and State Human Rights Laws, plaintiff claims that defendants breached her employment contract, the seventh cause of action at issue.
In moving to dismiss the- breach of contract claim pursuant" to C.P.L.R. §§ 3211(a) (1), based on documentary evidence, defendants' maintain that the.employment agreement definitively shows they owed no contractual obligation to provide a qualified supervisor, so any failure to do so was not an actionable breach of contract. Alternatively, defendants contend that they provided qualified supervisors, as shown by other.documentary evidence that both Sharma and Kirmayer were qualified supervisors after plaintiff received the LMSW des-ignation, which was the first point when she was qualified to accumulate supervised clinical hours toward the LCSW designation. Finally, even if plaintiff alleges a breach of the agreement, defendants contend that she fails to state a viable.cause of action that she lost income or benefits, since the employment contract provided for "At Will" employment. Aff. of Kirsten Cullen Sharma.Ex. A, .
Upon defendants' motion to dismiss the amended complaint pursuant to C.P.L.R. § 3211(a)(7), defendants bear the burden to establish that the amended complaint "fails to state a viable cause of action." Connolly v. Long Island Power Auth., 30 N.Y.3d 719, 728 (2018). In evaluating defendants' motion, the court must accept plaintiff's allegations as true, liberally construe them, and draw all reasonable inferences in her favor. Doe v. Bloomberg L.P., 36 N.Y.3d 450, 454 (2021); Connolly v. Long Island Power Auth., 30 N.Y.3d at 728; JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 (2015); M & E 73-75 LLC v. 57 Fusion LLC, 189 A.D.3d 1, . 5 (1st Dep't 2020). The court will not give such consideration, however, to allegations that consist of only bare legal conclusions. Myers v. Schneiderman, 30 N.Y.3d 1, 11 (2017); Simkin v. Blank., 19 N.Y.3d 46, 52 (2012); M & E 73-75 LLC v. 57 Fusion LLC, 189 A.D.3d at 5. Instead, the court accepts as true only plaintiff's factual allegations that set forth the elements of a legally cognizable claim and from them draws all reasonable inferences in her favor. Dismissal is warranted if the amended complaint fails to allege facts that fit within any cognizable legal theory. Sassi v. Mobile Life Support Servs.; Inc.; 37 N.Y.3d 236 (2021); Faison v. Lewis, 25 N.Y.3d 220, 224 (2015).
To- succeed- on a motion .to dismiss the amended complaint pursuant to C.P.L.R. § 3211(a)(1), the documentary evidence that forms the basis of a defense must "utterly refute[ ] the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Himmelstein, McConnell, Gribben, Donoahue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d at 175"(quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002)). See Atsco Footwear Holdings, LLC v. KBG, LLC, 193 A.D.3d 493, 494 (1st Dep't 2021). As under § 3211(a)(7), the court considers the facts alleged in the complaint as true and affords plaintiff the -benefit of every favorable inference'. Himmelstein, McConnell, Gribben, Donoahue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d at 175. Factual claims flatly contradicted by documentary evidence, however, as well as allegations consisting of bare legal conclusions, are not entitled to any such consideration. Myers v. Schneiderman, 30 N.Y.3d at 11; Array BioPharma, Inc. v. AstraZeneca AB, 18 4 A.D.-3d 463, 464 (1st Dep't 2020). C:P.L.R. § 3211(a)(1) does not explicitly define documentary evidence, but the'documents must be unambiguous and of undisputed authenticity, with contents that are essentially undeniable, to establish a conclusive defense. VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dep't 2019).
Defendants point to plaintiff's employment contract 'as documentary evidence of the-parties' agreement that establishes a conclusive defense. The parties stipulate that the employment contract submitted by defendants, Sharma Aff. Ex. A, is authenticated and admissible and that the court may consider it for purposes of defendants' motion.
As set, forth above, defendants contend that the contract does not require Milestones to provide supervision for the supervised hours plaintiff required for her LCSW designation, so defendants' failure to provide a qualified supervisor may not form the basis for a breach of contract. Defendants also suggest that plaintiff s claim requires the court to consider parol evidence outside the terms of the written agreement, and, when that evidence is considered, the claim fails.
Plaintiff responds that, while, the contract does not explicitly require Milestones to provide a qualified supervisor, .the contract shows the parties intended that plaintiff would attain LCSW status, implying an obligation to provide the required supervisor for her to do so. Plaintiff presents documents showing Kirmayer scheduling and tracking the hours that she supervised plaintiff, acknowledging such an obligation.
Where a contract's terms are unambiguous, those .terms, considered in the context of the whole agreement, determine the parties' intent. Tomhannock, LLC v. Roustabout Resources, LLC, 33 N.Y.3d 1080, 1082 (2019). In reviewing the contract to discern the parties' intent, the court must read the agreement in the context of the parties' industry, history, and relationship' and avoid an interpretation contrary to the parties' reasonable expectations. 159 MP Corp. v. Redbridae Bedford, LLC, 33 N.Y.3d 353, 359 (2019); Wells Fargo Bank, N.A. v. Lloyd's Syndicate AGM 2488, 195 A.D.3d 434, 435 (1st Dep't 2021).
The parties' employment contract provides that plaintiff will achieve the LCSW designation. Sharma Aff. Ex. A, at 2. Milestones is in the business of providing psychological counseling services, raising the inference that Milestones' officers or supervisory employees are aware of the LCSW accreditation requirements. N.Y. Educ. Law § 7704. The contract further requires plaintiff to "devote full-time, all of her professional time and efforts to and for the benefit of Milestones Psychology" and bars her from "render[ing] professional or clinical services to any person, whether or not for compensation, except as an employee of Milestones Psychology, unless [she] shall first have obtained the written consent of Milestones Psychology." Sharma Aff. Ex. A, at 3-4. These terms, reasonably interpreted, indicate that the parties intended plaintiff to perform the required hours of clinical social work at Milestones and under defendants' supervision.
At minimum, the contract is ambiguous, so as not to preclude plaintiff's interpretation as a matter of law, and...
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