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ABBASI v. HERZFELD & RUBIN

September 7, 1994

AKHTAR K. ABBASI, Plaintiff,
v.
HERZFELD & RUBIN, P.C., Defendant.



The opinion of the court was delivered by: ROBERT L. CARTER

 CARTER, District Judge

 Defendant Herzfeld and Rubin, P.C. ("Herzfeld and Rubin") moves to dismiss the complaint filed by plaintiff Akhtar K. Abbasi pursuant to Rules 9(b) and 12(b)(6), F.R.Civ.P., on the ground that plaintiff has failed to state a claim upon which relief may be granted. Plaintiff opposes this motion and cross-moves for sanctions under Rule 11, F.R.Civ.P., arguing that defendant's motion to dismiss is without merit.

 Plaintiff filed this action in order to recover damages and other relief stemming from the termination of his employment by defendant Herzfeld and Rubin. Although his complaint was not clear as to the federal statutes allegedly violated, plaintiff more explicitly alleges in his Memorandum of Law [in Opposition to Defendant's Motion to Dismiss] that defendant wrongfully terminated him in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (1993 Supp.), the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1985) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1993 Supp.), as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). Plaintiff also makes out a claim for fraud. Inasmuch as plaintiff states that these are the only claims that he is asserting, the court need not address issues related to a claim for breach of contract, as suggested by defendant and the face of the complaint itself.

 I.

 Plaintiff is a 65 year-old Pakistani native who current resides in the United States. On or about January 11, 1991, plaintiff was hired as a paralegal by defendant Herzfeld and Rubin, a law firm located in New York City. During the course of his employment plaintiff alleges that attorney Jeffrey Golkin, who supervised his work, commended him on his performance and expressly stated that he could remain with the firm for as long as he wished. Plaintiff also claims that due to his superior performance he was given two annual raises.

 On or about February 20, 1993, plaintiff suffered a minor stroke. Thereafter he remained absent from work on sick leave for two weeks and, upon his return, was laid off by defendant. Plaintiff maintains that defendant told him that "his employment was being terminated because his health would not permit him to take the stress of his job functions." (Compl. at 5.) Subsequent to his discharge, plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission, which in turn issued to him a notice of right to sue defendant. As a defense to plaintiff's discrimination charge, defendant alleged that plaintiff's employment was terminated due to his unsatisfactory performance throughout the entire tenure of his employment. (Id.)

 II.

 In deciding a motion to dismiss under Rule 12(b)(6), F.R.Civ.P., the court must consider the legal sufficiency of the complaint, not the weight of evidence which might be offered at trial, and in order to prevail, the moving party must demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court assumes the truth of the allegations set forth in the complaint and draws all inferences in favor of the pleader. See Karasyk v. Marc Commodities Corp., 770 F. Supp. 824, 829 (S.D.N.Y. 1991) (Haight, J.) (citing cases). However, conclusory allegations that fail to give a defendant notice of the material elements of a claim are insufficient as a matter of law to state a claim. Duncan v. AT & T Communications, Inc., 668 F. Supp. 232, 234 (S.D.N.Y. 1987) (Carter, J.)

 As noted in his Memorandum of Law, plaintiff alleges disability-based, age and race discrimination. Although the complaint was drafted by plaintiff's counsel, it is deficient in that it fails to state facts sufficient to apprise defendant or the court of plaintiff's claims. Therefore, the complaint must be dismissed. However, in order to avoid future futile amendments, a review of the complaint's substantive deficiencies is appropriate at this time.

 Title I of the ADA prohibits discrimination by certain private employers against qualified individuals with disabilities because of such disability in the terms, conditions and privileges of employment. 42 U.S.C. § 12112. Under the Act "disability" is defined as the following:

 
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
 
(B) a record of such an impairment; or
 
(C) being regarded as having such an ...

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