| Miloscia v B.R. Guest Holdings, LLC |
| 2012 NY Slip Op 02797 [94 AD3d 563] |
| April 17, 2012 |
| Appellate Division, First Department |
| Michael Anthony Miloscia, Respondent, v B.R. GuestHoldings, LLC, et al., Defendants/Third-Party Plaintiffs-Appellants. Metropolitan TransportationAuthority et al., Third-Party Defendants-Respondents, et al., Third-PartyDefendant. |
—[*1] The Sattiraju Law Firm, P.C., Lynbrook (Ravi Sattiraju of counsel), for Michael AnthonyMiloscia, respondent. Wallace D. Gossett, Brooklyn (Lawrence A. Heisler of counsel), for MetropolitanTransportation Authority and New York City Transit Authority, respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 18,2011, which, insofar as appealed from, denied defendants' motion for summary judgmentdismissing the complaint, granted third-party defendants Metropolitan Transportation Authorityand New York City Transit Authority's (together NCYTA) motion to dismiss the third-partycomplaint against them, and denied defendants'/third-party plaintiffs' cross motion for summaryjudgment on the third-party complaint, unanimously modified, on the law, to the extent ofgranting that portion of defendants' summary judgment motion seeking dismissal of the breach ofcontract claim against defendant Pamela Friedl, and otherwise affirmed, without costs.
In this action for employment discrimination and breach of an agreement to provide healthinsurance benefits, plaintiff, who began employment with defendant BR Guest on April 29, 2009,was struck by a bus owned and operated by third party defendant New York City TransitAuthority (NYCTA) and hospitalized on July 16, 2009, shortly before he became eligible forhealth insurance benefits pursuant to the offer of employment letter which provided that plaintiffwould be eligible for benefits on the first day of the month following his completion of threemonths of employment (i.e., August 1, 2009). The parties dispute the date of plaintiff's [*2]termination, which plaintiff maintains occurred on August 4, 2009,when defendant Pamela Friedl, BR Guest's corporate recruiter, sent plaintiff's mother a letterstating, in effect, that plaintiff had been terminated as of the date of the accident. In light of theAugust 4th 2009 letter that plaintiff was terminated on the same day as the accident which causedhis disability, we find that issues of fact exist as to whether, among other things, defendants"engage[d] in a good faith interactive process that assesses the needs of the disabled individualand the reasonableness of the accommodation requested," as required under the New York Stateand City Human Rights Laws (HRL) (see Phillips v City of New York, 66 AD3d 170, 176 [2009]).
Defendant Friedl testified that she was one of several BR Guest employees who determinedthat plaintiff had to be terminated following his accident. As noted above, she also authored theletter of termination. Based on this evidence, we find that the motion court did not err in denyingthat portion of her motion seeking dismissal of plaintiff's HRL claims against her.
BR Guest's motion for summary judgment on the breach of contract claim was also properlydenied. Although an employee may not maintain an action for breach of contract based uponprovisions contained in an employee manual where that manual also expressly provides that theemployment remains at-will (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312,316-17 [2001]), plaintiff's contract claim is not for termination, but rather for benefits, includinghealth insurance. In other words, plaintiff is suing "for agreed compensation for fully completedpast services" (Falcone v EDO Corp., 141 AD2d 498, 499 [1988]). There are issues offact regarding whether he was unlawfully terminated on August 4 and whether he had earnedeligibility for health insurance benefits prior to his termination (id.).
Plaintiff's contract claim against Friedl should be dismissed because she was merely anemployee and not a party to any contract between plaintiff and BR Guest (see Murtha vYonkers Child Care Assn., 45 NY2d 913, 914-915 [1978]).
Defendants have failed to preserve their argument that plaintiff's contractual claim for healthinsurance benefits is preempted by the Employee Retirement Income Security Act (29 USC§ 1001 et seq.). In any event, we find that plaintiff's contract claim is notpreempted by ERISA (see Nealy v US Healthcare HMO, 93 NY2d 209, 217-219 [1999]).
Defendants may not seek contribution from NYCTA since the injury which they allegedlycaused—violation of plaintiff's human rights—is not the same as NYCTA's allegednegligence in striking him with their bus (see Gonzalez v Jacoby & Meyers, 258 AD2d560, 560-561 [1999]). Nor may they seek to shift any loss to NYCTA via the doctrine ofcommon-law [*3]indemnification since they are being suedentirely for their own alleged wrongdoing, not derivatively (see Trustees of Columbia Univ. vMitchell/Giurgola Assoc., 109 AD2d 449, 451 [1985]). Concur—Andrias, J.P.,Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ. [Prior Case History: 33 Misc 3d466.]