The opinion of the court was delivered by: WHITMAN KNAPP
WHITMAN KNAPP, SENIOR D.J.
In August 1994, plaintiff brought this action in New York Supreme Court seeking coverage under the disability policy provided by his former employers, Citicorp and Citibank, N.A. (hereinafter "Citibank"). The complaint alleged that Citicorp and Citibank had breached that policy by denying plaintiff past, present and future long term disability benefits and stated four contractual claims. Citibank and Citicorp removed the action to this court in September 1994 on the ground that all claims asserted in the complaint were preempted by ERISA.
In a memorandum and order of February 9, 1995, we dismissed the complaint, but granted plaintiff leave to file an amended complaint asserting claims under 29 U.S.C.A. § 1133, ERISA's notice provision.
In March 1995 plaintiff filed an amended complaint against the United States Human Resources Policy Committee of Citibank, N.A. (hereinafter "the Committee"), a new defendant, asserting not only § 1133 claims but claims asserted in his original complaint as well. The amended complaint includes no claims against either Citibank or Citicorp. The Committee now moves to dismiss the amended complaint.
The amended complaint alleges that in October 1989, plaintiff entered into a resignation agreement with Citibank, his employer, under which "his employment with Citibank would terminate on December 31, 1990. . ." Amend. Comp. at P 12. It further alleges that during September 1990 plaintiff was hospitalized for pancreatitis and had a gallbladder and gallstones surgically removed. Id. at P 13. During this hospitalization, "plaintiff requested and was granted sick leave by his employer for a period of approximately two months." Id. at P 14. Accordingly, "plaintiff's resignation date was extended to sometime * * * during March, 1991." Id. at P 15.
The amended complaint explains that plaintiff's Multiple Sclerosis ("MS") worsened due to his pancreatitis and other related medical problems, "thereby considerably reducing plaintiff's ability to function both physically and mentally." Id. at P 16. Plaintiff's position was terminated, as planned, in March 1991. Id. at P 17. After the termination, "plaintiff's ability to function both physically and mentally continued to deteriorate" until, in August 1991, he was hospitalized for MS. Id. at P 18.
The amended complaint alleges that "as a result of plaintiff having been afflicted with MS, he has become permanently and totally disabled. .," id. at P 19, but does not specify the particular month or year in which such disability took hold. Plaintiff asserts that sometime after his August 1991 hospitalization for MS he "improved to the extent that he, for the first time, realized the extent of his disability and the need to make application for  Long-Term Disability Income. . ." Id. at P 20. According to the amended complaint, between August and October, 1991 -- three to six months after plaintiff's position at Citibank was terminated -- "plaintiff initiated the process by which he would make application to defendant for LTD [Long Term Disability] benefits. . ." Id. at P 21.
Defendant's motion to dismiss is based entirely on an argument that former defendants had not raised: that at the time he applied for long term disability benefits plaintiff was not a "participant" in the ERISA plan it administers ("the Plan") and therefore was entitled neither to such benefits, nor to proper notice of any denial of such benefits. For purposes of deciding the instant motion, we shall assume that plaintiff applied for the benefits in August 1991.
Under the Plan, only "participants" are entitled to either short or long term disability benefits. See Def. Ex. A at 8-9. The Plan defines "participant" as "an Employee who is participating in the Plan under Article II" and defines "employee" as
a person who is performing services in the employ of an Employer in the United States and Puerto Rico * * * on a regular work schedule of at least 20 hours per week for at least six months, excluding any person performing services as an independent contractor.
Article II, Section 3 of the Plan, entitled "Termination of Participation," provides in ...