September 26, 1996 as an Architectural Drafter.
On November 2, 1998, Frudakis was appointed to the position of
Architectural Drafter 1, in the non-competitive classification,
pursuant to N.Y. Civil Service Law Sec. 55-a. In this position,
Frudakis' main duties were to draw up plans and go out to job
sites. In Frudakis' Complaint he states that he performed these
job functions properly and received praise for his performance.
In late November 1998, Frudakis broke his clavicle in a car
accident. Upon his return to work, he was assigned to work in
the print room, an enclosed area without windows or ventilation,
which caused him to suffer panic attacks.
On February 3, 1999, Frudakis provided defendants with a
letter from his psychiatrist informing them that working in the
print room would exacerbate his panic attacks. In the letter,
the psychiatrist asked defendants to avoid placing Frudakis in
the print room during his treatment. Despite this letter,
defendants continued to ask Frudakis to make prints in the print
On February 17, 1999, Frudakis provided defendants with a
letter from his orthopedic surgeon advising that he had
difficulty moving his left arm and shoulder and seeking a
reasonable accommodation. Despite this letter, defendants
continued to require Frudakis to carry "spec" books weighing
approximately 15 pounds.
On April 19, 1999, defendants provided Frudakis with a letter
stating that, based upon an evaluation by the County of Suffolk
Medical Review Office, he would not be required to use the print
room. Despite that letter, on May 4, 1999, Frudakis' supervisor
asked him to make prints for him. When Frudakis complained to
Commissioner Charles Bartha about defendant's failure to
accommodate him, Bartha responded that he was very disappointed
On June 1, 1999, Frudakis filed a complaint with the New York
State Division of Human Rights and EEOC alleging that defendants
failed to accommodate his disability.
Despite this complaint, defendants continued to ask Frudakis
to make prints in the print room and carry heavy books, rather
than to draw up plans and go to job sites. On September 19,
1999, after Frudakis' supervisor again asked him to make copies
in the print room, Frudakis suffered a panic attack.
On October 4, 1999, Commissioner Bartha called Frudakis into a
meeting with himself, Frudakis' supervisor, the County of
Suffolk Architect and a representative from personnel. During
the meeting, Frudakis advised that he would be able to make
prints if the machine was moved out of the print room. That
accommodation was never made.
During the same meeting, Bartha asked Frudakis when his
probationary period would end, and Frudakis told him November 2,
1999. On October 15, 1999, defendants terminated Frudakis'
Since his termination, Frudakis has sought other employment.
In February 2000, Frudakis claims he was practically offered a
job until the employer called back to ask Frudakis why he did
not state that he was in litigation. Frudakis found other
employment in July 2000.
On July 11, 2000, Frudakis filed suit alleging defendants
failed to accommodate him under the ADA, and the NYHRL, and
defendants retaliated against him, in violation of the ADA and
NYHRL. Frudakis requests that his employment be reinstated with
full back pay, benefits and
interest, and that defendants accommodate him, and pay damages.
MOTION TO DISMISS STANDARD
Rule 12(b)(6) Motion to Dismiss
Dismissal is warranted where "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which, would entitle him to relief." Ricciuti v. New York City
Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d
80, (1957)). "This caution applies with greater force where the
complaint is submitted pro se or the plaintiff alleges civil
rights violations." Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
In deciding a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a court must accept all allegations
in the complaint as true and draw all inferences in favor of the
nonmoving party. See Wynn v. Uhler, 941 F. Supp. 28 (N.D.N.Y.
1996). The complaint, however, must "give defendants fair notice
of what the plaintiffs' claim is and the grounds upon which it
rests." Conley, 355 U.S. at 47, 78 S.Ct. 99.
At oral argument on December 8, 2000, this Court denied
defendants' motion to dismiss the NYHRL claims (which were
raised in the original Complaint). Thus, the only issue in the
instant action is whether plaintiffs Amended Complaint
adequately states a claim under the ADA.
Defendants correctly argued on December 8th that plaintiffs
Complaint did not adequately state the elements under the ADA.
Specifically, while plaintiff enumerated his ailments in his
Complaint, he did not indicate whether and how such impairments
substantially limit a major life activity, which is necessary
for an ADA claim. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct.
2196, 141 L.Ed.2d 540 (1998); Sacay v. Research Foundation of
City University of New York, 44 F. Supp.2d 496 (E.D.N.Y. 1999);
42 U.S.C. § 12102(2).
Plaintiffs Amended Complaint suffers from the same
shortcoming. While it includes an additional paragraph (number
nine (9)) which lists plaintiffs "limitations and conditions,"
there is no claim or any indication that such limitations affect
major life activities. Thus, plaintiffs Complaint does not
adequately set forth the factors necessary to state a claim
under the ADA sufficient to defeat a motion to dismiss
For the foregoing reasons, defendants' motion to dismiss
plaintiffs Amended Complaint must be and the same hereby is
granted with respect to Frudakis' ADA claim.
Thus, there being no federal claims remaining against
defendants, this case is transferred to Supreme Court, Suffolk
County, for further proceedings.
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