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November 2, 1998

ROBERT E. MULLER, Plaintiff,

The opinion of the court was delivered by: HURD


 Plaintiff Robert E. Muller ("Muller" or "plaintiff") filed this action alleging that the defendant First Unum Life Insurance Company ("First Unum") wrongfully denied him long term disability benefits due under a policy issued by First Unum through Muller's employers. This original claim was brought under the Employee Retirement Income Security Act ("ERISA"), as amended, 29 U.S.C. §§ 301-09, 441, 1001-1461. Plaintiff currently seeks to amend his complaint, first by adding his wife, Antoinette I. Muller, as a party plaintiff. Second, plaintiff wishes to add the following as defendants: (1) the Trustees of Hospital Association of New York State Group Insurance Trust ("HANYS"), the Policyholder and Plan Administrator of the insurance plan and policy in question; and (2) Albany Medical College and the Albany Medical Center (collectively "Albany Med"), plaintiff's employers. Finally, plaintiff seeks to assert claims under the Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§ 12101-12213, and the New York State Human Rights Law ("NYSHRL"), as amended, N.Y. Exec. L. §§ 290-301. Defendant First Unum opposes the proposed amendments. Should the amendments be granted as proposed, the plaintiffs would assert ERISA, ADA, and NYSHRL claims as against each of the defendants, First Unum, HANYS, and Albany Med.


 Albany Med employed Muller as a nurse anesthetist for a time prior to January 1994. Albany Med provided group long term disability benefits to Muller and other employees through its association with HANYS. HANYS is the plan administrator named in the certificate of coverage. (See Pl.'s Letter Mot. Ex. D.) In January 1994 Muller stopped working due to drug addiction and depression. Under the terms of the group long term disability policy First Unum paid Muller disability benefits beginning on July 18, 1994. On May 23, 1995, First Unum stopped paying the benefits, contending that Muller, having been successfully treated for his drug addiction, was no longer disabled. Muller asserted at that time, and continues to assert, that he is totally disabled and unable to work due to depression. He appealed the denial of benefits through the administrative process, thus meeting the exhaustion of remedies prerequisite to an ERISA suit.

 Benefits for individuals suffering disability due to a mental disorder such as depression were limited to two years, according to the terms of the long term disability policy under which Muller was insured. However, benefits for an individual with a physical disability would be payable until the individual reached age 65, if the disability continued.

 Plaintiff now contends that the disparity between benefits paid to those suffering from mental disabilities and to those suffering from physical disabilities discriminates against those with mental disorders on the basis of their disability, in violation of the ADA and NYSHRL. Muller filed a complaint with the Equal Employment Opportunity Commission and received a right to sue letter, thus meeting the exhaustion of remedies prerequisite to a disability discrimination claim.


 A. Analytical Framework

 First Unum makes arguments against the amendments, which in essence assert that the new claims would not survive a motion to dismiss. In contrast, plaintiff argues that both he and his wife state viable claims. *fn1" Accordingly, in order to determine whether to permit the amendments, the ERISA claim must be analyzed as to each putative defendant, the ADA/NYSHRL claims must be analyzed as to First Unum and the putative defendants, and plaintiff's wife must be evaluated as a putative plaintiff with regard to all claims.

 Leave to amend a complaint should be freely given. Fed. R. Civ. P. 15(a). Several factors may be considered when determining whether to permit an amendment. Nerney v. Valente & Sons Repair Shop, 66 F.3d 25, 28 (2d Cir. 1995); Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234, 235 (2d Cir. 1995). Normally in the absence of "'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 by virtue of allowance of the amendment, [and] futility of amendment'" leave to amend should be granted. Rachman, 46 F.3d at 234 (quoting Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)). Undue delay or futility of amendment, inter alia, would be grounds upon the which the amendment should be denied. Nerney, 66 F.3d at 28; Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d Cir. 1989).

 "An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis." Chan v. Reno, 916 F. Supp. 1289 (S.D.N.Y. 1996)(citing S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974)).

 A cause of action will be dismissed if it "appears 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). In considering a motion for dismissal it is assumed that all of the allegations in the complaint are true. Id. In reviewing the sufficiency of a complaint at the pleading stage, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 B. ERISA Claim

 Muller seeks to add his wife, allegedly a beneficiary of the long term disability policy, as a party plaintiff. The cause of action Muller brings under ERISA is essentially a suit to recover benefits due. In addition to recovery of benefits due, ERISA provides that actions may be brought to determine what benefits may be due in the future. 29 U.S.C. § 1132(a)(1). Participants and beneficiaries may bring ERISA actions. Id. A beneficiary is a person designated by a participant or by the terms of a plan who is or may become entitled to benefits under the plan. Id. at § 1002(8). An individual who is a potential beneficiary, regardless of whether he or she becomes an actual beneficiary, has standing to bring an ERISA suit. Riordan v. Commonwealth Edison Co., 128 F.3d 549, 552 (7th Cir. 1997); see 29 U.S.C. § 1002(8). Plaintiff's allegation that his wife is a potential beneficiary because of survivorship benefits which would be due to her should plaintiff die while receiving long term disability payments must taken as true when determining if ...

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