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July 9, 2001


The opinion of the court was delivered by: John G. Koeltl, District Judge:

Plaintiff Daphne Simeon ("Simeon") brings this action pursuant to section 502(a)(3), 29 U.S.C. S 1132(a)(3), of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"), against defendants The Mount Sinai

Medical Center ("Mount Sinai"), the Mount Sinai Tax Sheltered Annuity Plan a/k/a Mount Sinai NYU Health 403(b) Plan (the "Plan"), the Mount Sinai Hospital, and Mount Sinai School of Medicine. The Plan is an ERISA regulated tax sheltered annuity plan that allows Mount Sinai employees to make tax deferred contributions to an account to save for their retirement. If an employee enrolls in the Plan, Mount Sinai also makes an annual contribution equal to ten percent (10%) of the employee's salary to the employee's Plan account. Simeon alleges that the defendants breached their duties under ERISA by failing to give her adequate notice of the existence of the Plan. As a result, Simeon failed to enroll in the Plan for approximately five years and was unable to take advantage of the Plan benefits for that period of time. The defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the following reasons, the defendants' motion to dismiss is denied.



On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F..2d 1059, 1067 (2d Cir. 1985). Therefore, the defendants' present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Grandon, 147 F.3d at 188; see also Goldman, 754 F.2d at 1065. In deciding the motion, the court may consider documents referenced in the complaint and documents that are in the plaintiff's possession or that the plaintiff knew of and relied on in bringing suit. See Brass v. American Film Technologies. Inc. F.2d 142, 150 (2d Cir. 1993); Cortec Indus.,Inc. v. Sum Holding L.P. F.2d 42, 47-48 (2d Cir. 1991); Meyer Pincus & Assoc.,P.C. v. Oppenheimer & Co.,Inc. F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF America. Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997)


The plaintiff's complaint is based on the following allegations. Mount Sinai Medical Center is a New York Not-for-Profit it Corporation that operates Mount Sinai Hospital and Mount Sinai Medical School with its principal place of business in New York, New York. (Compl. ¶ 4.) Simeon is a medical doctor and psychiatrist residing in New York County and has been employed as Director of Medical Student Education and Assistant Professor in the Department of Psychiatry of Mount Sinai Medical School since about July 1994. (Compl. ¶ 2.)

Simeon began her employment at Mount Sinai at an annual salary of $90,000. (Compl. ¶ 8..) After salary increases, her salary rose to $97,000. (Compl. ¶ 9.) In May 1998, her salary was reduced by twenty percent (20%) in connection with her decision to reduce her hours by twenty percent. (Compl. ¶ 9.) As an employee of Mount Sinai, Simeon has been eligible to participate in the Plan and to have Mount Sinai make annual contributions to her account in an amount equal to ten percent (10%) of her salary. (Compl. ¶ 10.) Simeon has also been eligible to make additional annual contributions to her Plan account from her own funds. (Compl. ¶ 10.) Simeon alleges that she did not enroll in the Plan after beginning her employment because she was not notified of the Plan and was not aware that the Plan existed. (Compl. ¶ 11.)

In or about the Spring of 1998, Simeon phoned the Mount Sinai Benefits Office after a co-worker informed Simeon about the Plan. (Compl. ¶ 12.) A Mount Sinai representative at the benefits office allegedly informed her that no such plan existed. (Compl. ¶ 12.) On or about March 29, 1999, after another coworker informed Simeon about the Plan, Simeon met with a Mount Sinai representative and was advised that she was eligible for the Plan. (Compl. ¶ 13.) At that meeting, Simeon was advised that Mount Sinai had informed her about the Plan in a letter mailed to her home on or about August 15, 1994 and that no contributions had been made to her Plan account because she had not returned a signed copy of the enrollment forms included in the mailing. (Compl. ¶ 15.) Simeon claims that she did not receive this letter and that the letter was the only attempt by Mount Sinai to inform her that she was eligible for the Plan. (Compl. ¶¶ 16-17.)

Simeon then completed enrollment forms for the Plan. (Compl. ¶ 13.) Simeon has received annual contributions to the Plan for her account in the amount of 10% of her salary since about April 1, 1999. (Compl. ¶ 14.)

By letter dated July 22, 1999, Simeon submitted a written appeal to Mount Sinai's Benefits Office. (Compl. ¶ 19.) In that letter, her counsel argued that the denial of benefits was "an unlawful denial of a benefit and a breach of fiduciary duty" in violation of ERISA. (Ex. F to Declaration by Paula Mednick dated Sept. 28, 2000 ("Mednick Decl.")) By letter postmarked October 27, 1999, Diane Tucker, the Director of Human Resources, informed Simeon that she was not entitled to retroactive contributions because she had not submitted an enrollment form by September 23, 1994 as was required by the August 1994 letter. (Compl. ¶ 20.)

By letter delivered December 17, 1999, Simeon appealed the denial of her claim to Mount Sinai's Vice President of Human Resources and Labor Relations. (Compl. ¶ 21.) Mount Sinai has not replied to Simeon's appeal (Comp. 22.)

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