United States District Court, Southern District of New York
February 15, 2002
YEVGENY MATUSOVSKY, PLAINTIFF,
MERRILL LYNCH, DEFENDANT.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
DECISION AND AMENDED ORDER
Plaintiff Yevgeny Matusovsky ("Matusovsky") filed this action against
defendant Merrill Lynch, Pierce & Smith Incorporated ("Merrill") alleging
violations of his civil rights under federal, New York State and City
laws. In response, Merrill filed a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). For the reasons set forth below, the Court grants
According to the complaint, Merrill hired Matusovsky as a full-time
consultant in 1998. At that time, Matusovsky informed Merrill that, as an
Orthodox Jew, he observed the Sabbath and could not work on Saturdays.
Initially, Merrill did not schedule Matusovsky for work on Saturdays.
However, starting sometime during or after November of 1999, a new
manager began assigning Matusovsky to work on Saturday nights and
Sundays. In March of 2000, Matusovsky was put on probation for poor
performance and attendance; on July 5, 2000, he was fired.
Shortly after his termination, Matusovsky commenced proceedings in the
Civil Court of New York to obtain ten boxes of property from his office
that he contended belonged to him. Before the Civil Court heard the
matter, on September 22, 2000 Merrill settled the case. In that
connection, Matusovsky signed a General Release stating that:
I [Yevgeny Matusovsky] release and give up any and
all claims which I may have against You [Merrill].
This releases all claims, including those of which
I am not aware and those not mentioned in this
release. This General Release applies to all
claims resulting from anything which has happened
up to now. I specifically release any and all
claims arising out of my small claims action
brought in the Civil Court of New York, Index
Number SCK 6773/2000.
(Memorandum of Law in Support of Defendant's Motion to Dismiss the
Complaint ("Def.'s Mem."), at Ex. B ("General Release") at 1, ¶ 1.)
In exchange for execution of the General Release, Matusovsky was
permitted to retrieve the ten boxes he claimed and received a check in the
amount of $45.00. (General Release, ¶ 3 ("Paragraph Three").)
Matusovsky acknowledges that he signed a "General Release purportedly
releasing Merrill Lynch of any liability with respect to any claims
Plaintiff may have against the company. (Complaint ("Compl."), ¶ 12.)
Matusovsky claims-that the General Release does not bar this action
because Merrill "did not provide Plaintiff with any consideration in
exchange for the General Release." (Compl., ¶ 13.) Matusovsky made no
allegations in his complaint regarding the circumstances under which he
entered the General Release.
In response, Merrill filed a motion to dismiss the complaint pursuant
to Fed. R. Civ. P. 12(b)(6) based on Matusovsky's failure to state a
claim upon which relief may be granted. Merrill attached the General
Release in support of its motion. Matusovsky opposed the motion on the
grounds that the General Release is invalid and unsupported by
consideration. The question before the Court is whether the General
Release operates to bar this action. The Court concludes that it does.
A district court may grant a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) only if it appears beyond doubt that the non-moving
party could prove no
set of facts that would entitle it to relief. See Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); Valmonte v. Bane,
18 F.3d 992, 998 (2d Cir. 1994). In reviewing the pleadings, a court must
accept the non-moving party's factual allegations-as true. See Hishon,
467 U.S. at 73. Furthermore, a court may consider documents attached to
the complaint as exhibits, or incorporated by reference, as well as any
documents that are integral to, or explicitly referenced in, the
pleading. See I. Meyer Pincus & Associates, Inc. v. Oppenheimer & Co.,
Inc., 936 F.2d 759, 762 (2d Cir. 1991); 2 Broadway LLC v. Credit Suisse
First Boston, No. 00 Civ. 5773, 2001 WL 410074, 5 (S.D.N.Y. Apr. 20,
2001). If a plaintiff's allegations are contradicted by such a document,
those allegations are insufficient to defeat a motion to dismiss. See 2
Broadway LLC, 2001 WL at 9 (citations omitted). Here, Matusovsky
explicitly referred to the General Release in his complaint. Thus, the
Court will examine that document in its consideration of Merrill's motion
to dismiss the complaint.
Under federal law, an employee may waive his Title VII claim of
discrimination against his employer, provided that the waiver is knowing
and voluntary. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15
(1974); Bormann v. AT&T Communications, Inc., 875 F.2d 399, 402 (2d Cir.
1989); Livingston v. Bev-Pak, Inc., 112 F. Supp.2d 242, 247 (S.D.N Y
2000). Whether the employee's waiver was knowing and voluntary depends
upon the totality of the circumstances, including factors such as:
(1) the plaintiff's education and business
experience; (2) the amount of time that the
plaintiff had possession of or access to the
agreement before he signed it; (3) the plaintiff's
role in deciding the terms of the waiver agreement;
(4) the clarity of the agreement; (5) whether the
plaintiff was represented by or consulted with an
attorney prior to signing the agreement; (6) whether
the consideration given to the plaintiff was in
exchange for the waiver exceeds the employee
benefits to which the plaintiff was already entitled
by contract or law; (7) whether the employer
encouraged or discouraged the plaintiff to consult
with an attorney; and (8) whether the plaintiff had
a fair opportunity to consult with an attorney prior
to signing the agreement.
Livingston, 112 F. Supp. 2d at 247 (citing Bormann, 875 F.2d at 403). Not
every factor must be present for a waiver to be enforceable. Id.
Here, Matusovsky was employed as a consultant by Merrill. This position
indicates that he is neither uneducated nor inexperienced in business
affairs. Furthermore, his commencement of legal proceedings to obtain ten
boxes of property held by Merrill constitutes some evidence of
Matusovsky's sophistication in business and legal matters.
Written in plain English, the language of the General Release is clear
and unambiguous. By its terms, it covers "anything which has happened up
to now." Because Matusovsky had been fired only two and a half months
prior to signing the General Release, it would have been unreasonable for
Matusovsky to believe that the General Release did not also cover the
circumstances of his firing.
Although Matusovsky was not represented by an attorney, he had fair
opportunity to obtain one prior to commencing the Civil Court action or
during its pendency. Furthermore, Matusovsky does not allege that Merrill
discouraged him from consulting with an attorney.
Under paragraph Three of the General Release, in exchange for signing
General Release, Matusovsky received ten boxes of property which he
alleges belonged to him and which he argues was no more than he was
entitled to obtain as a matter of law. However, Merrill had opposed
Matusovsky's complaint in Civil Court and disputed ownership over the
contents of the ten boxes prior to execution of the General Release.
Accordingly, in addition to receiving ten boxes of property, the
ownership of which may have been contested, Matusovsky received the
additional consideration of settlement of the pending Civil Court
action. Conceivably, also, insofar as Merrill may have had grounds to
claim that any part of the property Matusovsky took away did not belong
to him, but did belong to Merrill, the settlement of the Civil Court
action may have entailed Merrill's agreement to drop any claim it may
have had against Matusovsky. Certainly, Merrill's relinquishment of such
claims would qualify as valuable consideration and something to which
Matusovsky was not already entitled.
In exchange also for Matusovsky's execution of the General Release,
Merrill agreed to send Matusovsky a check in the amount of $45.00.
Matusovsky did not contest Merrill's explanation that the $45.00 payment
was to cover "certain expenses for which [Matusovsky] wished to be
reimbursed, including a fee he paid in the [Civil] Court." (Def.'s Mem.,
at 5.) Accordingly, it appears that Matusovsky received more than that to
which he was already entitled under law. Moreover, contrary to
Matusovsky's conclusory assertions, (Plaintiff's Memorandum of Law in
Opposition to Defendant's Motion to Dismiss the Complaint, at 4-5), it
follows from the particularity of Paragraph Three that Matusovsky
participated in the negotiation and drafting of the General Release.
Accordingly, nothing in the record before the Court indicates that the
General Release is invalid, or fails for want of consideration, under
Federal law. As such, Matusovsky failed to state a federal claim. See 2
Broadway LLC, 2001 WL at 9.
Similarly, New York state courts enforce "a valid release which is
clear and unambiguous on its face and which is knowingly and voluntarily
entered into . . . as a private agreement between the parties." Sluth v.
United Merchants and Manufacturers, Inc., 163 A.D.2d 104, 106 (App. Div. 1
st Dep't 1990); Laramee v. Jewish Guild for the Blind, 72 F. Supp.2d 357,
359 (S.D.N.Y. 1999) (applying Bormann factors to evaluate and approve
validity of waiver under New York law). Such a release may still be
attacked "for being the product of fraud, duress or undue influence."
Sluth, 163 A.D. at 106. However, under New York law, there is no
obligation that a valid release be supported by consideration. See N Y
Gen. Oblig. § 15-303.
Here, Matusovsky does not assert that Merrill procured the General
Release through fraud, duress or undue influence. The Court already
discussed that, as a factual matter, the release is valid and supported
by sufficient consideration. Furthermore, Matusovsky's claim that the
General Release is invalid for want of consideration is not cognizable
under New York law. Therefore, because Matusovsky failed to state a
claims under federal, New York State and City law, his complaint must be
For the reasons set forth above, it is hereby
ORDERED that the Court's Order dated January 31, 2002, be amended to
incorporate the discussion set forth above; and it is further
ORDERED that the complaint be dismissed; and it is finally
ORDERED that the Clerk of Court close this case.
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