discharge," which, as stated above, is not recognized under New York law, in a form that the Court might be inclined to accept. As the New York Court of Appeals has already held, the courts may not allow such camouflage to render enforceable an otherwise invalid claim. See Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d at 236. Accordingly, the plaintiff's claim for intentional infliction of emotional distress as set forth in the eighth claim is dismissed.
7. The loss of consortium
The defendants contend that the plaintiffs have failed to establish a valid claim for loss of consortium because the underlying substantive causes of action upon which this claim is based are invalid. The concept of loss of consortium includes both loss of support services and more ephemeral concepts such as love, companionship, affection, society, sexual relations, and solace. Hassanein v. Avianca Airlines, 872 F. Supp. 1183, 1190 (E.D.N.Y. 1995). As the defendants correctly articulate in their memorandum of law, a claim for loss of consortium is a derivative claim which does not exist separate and apart from the injured spouse's claims. Id.; Milam v. Herrlin, 819 F. Supp. 295, 306 (S.D.N.Y. 1993); Perrin v. Hilton International, Inc., 797 F. Supp. 296, 302 (S.D.N.Y. 1992). Accordingly, where the injured spouse's underlying claims are dismissed, the claim for loss of consortium must similarly be dismissed. See, e.g., Hassanein, 872 F. Supp. at 1190 (granting summary judgment regarding claim for loss of consortium to the extent that the claim was based on the injured spouse's claims for emotional injuries which were also dismissed); Milam, 819 F. Supp. at 306 (dismissing claim for loss of consortium because the injured spouse's underlying claims were dismissed).
The Court has dismissed all the claims against Merrill Lynch and the claims against London Fog for accrued vacation benefits, attorneys' fees to the extent that they were raised as a separate cause of action, treble damages pursuant to ERISA, and intentional infliction of emotional distress. Accordingly, for Eleanor Gerzog to be able to maintain her claim for loss of consortium it must be viable against London Fog pursuant to the remaining age discrimination or ERISA claims.
However, age discrimination claims will not support a spouse's claim for loss of consortium. Reed v. Johnson Controls, Inc., 704 F. Supp. 170, 171-72 (E.D. Wis. 1989) (wife cannot "base her claim for loss of consortium on the defendant's alleged violation of ADEA"); see also Dugan v. Bell Telephone, 876 F. Supp. 713, 728 (W.D. Pa. 1994) (holding that age discrimination claims will not support of claim for loss of consortium under Pennsylvania law which requires loss of consortium to be based on negligent injury); Reilly v. Prudential Property and Casualty Insurance Co., 653 F. Supp. 725, 733, 735 (D.N.J. 1987) (granting summary judgment to defendant on spouse's loss of consortium claim where underlying "tort" claims were dismissed but ADEA claim remained); Belanoff v. Grayson, 98 A.D.2d 353, 471 N.Y.S.2d 91, 94 (1st Dept. 1984) (holding that a discrimination claims brought pursuant to New York Executive Law will not support a claim for loss of consortium), citing, Hart v. Sullivan, 84 A.D.2d 865, 445 N.Y.S.2d 40, 41 (3d Dept. 1981), aff'd, 55 N.Y.2d 1011, 449 N.Y.S.2d 481, 434 N.E.2d 717 (1982).
Moreover, ERISA preempts a spouse's claims for loss of consortium. See Nealy v. U.S. Healthcare HMO, 844 F. Supp. 966, 974 (S.D.N.Y. 1994); Dearmas v. Av-Med, Inc., 814 F. Supp. 1103, 1107 (S.D. Fla. 1993); Powell v. Bob Downes Chrysler-Plymouth, Inc., 763 F. Supp. 1023, 1029 (E.D. Mo. 1991). Accordingly, since the remaining claims for age discrimination and ERISA violations will not provide a basis for Eleanor Gerzog's derivative cause of action, the loss of consortium claim is dismissed in its entirety.
Leave to Replead
The plaintiffs have moved for leave to amend their complaint should any of the causes of action be dismissed. Rule 15(a) provides that "leave [to amend a pleading] shall be freely given when justice so requires." See also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995); Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). Only "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of the amendment" will serve to prevent an amendment prior to trial. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); accord Zahra, 48 F.3d at 685); Block, 988 F.2d at 350.
Leave to amend may be denied if the amendment would be futile. Foman, 371 U.S. at 182; In Re American Express Co., 39 F.3d 395, 402 (2d Cir. 1994); John Hancock Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994); Ruffolo v. Oppenheimer & Co., Inc., 987 F.2d 129, 131 (2d Cir. 1993). While the Courts are generally lenient in granting motions for leave to replead, granting the plaintiff's motion would be ineffectual and futile. There are no facts supporting any of Gerzog's claims against Merrill Lynch. Allowing Gerzog to rework his Complaint based on Merrill Lynch's equity interest in London Fog will do nothing but waste time and money only to have the Court grant a second motion pursuant to Rule 12(b)(6). Accordingly, Merrill Lynch's motion to dismiss is granted with prejudice, and leave to replead against Merrill Lynch is denied.
In addition, the claims against London Fog for accrued vacation benefits, attorneys' fees as a separate cause of action, treble damages under ERISA, intentional infliction of emotional distress and loss of consortium are dismissed with prejudice. The facts alleged in Complaint would not support these claims under any circumstances. The claim for attorneys' fees can be pressed in the other causes of action. Accordingly, leave to replead these causes of action against London Fog is denied.
After reviewing the submissions of all parties, and hearing oral argument, and for the reasons set forth above, it is hereby
ORDERED, that the defendant, Merrill Lynch's motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is granted with prejudice; it is further
ORDERED, that the defendant, London Fog's motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is granted with prejudice with respect to the claims for accrued vacation benefits, intentional infliction of emotional distress, attorneys' fees as a separate claim, treble damages under ERISA and loss of consortium; it is further
ORDERED, that the plaintiff is given leave for thirty days from the date of this Decision and Order to file an amended complaint with respect to accrued vacation pay under a common law theory of contract; and it is further
ORDERED, that the plaintiff's motion for leave to amend the Complaint is otherwise denied in all respects.
Dated: Uniondale, New York
November 18, 1995
Hon. Arthur D. Spatt
United States District Judge
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