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MASSEN v. CLIFF

April 25, 2003

NANCY MASSEN, PLAINTIFF, AGAINST PATRICIA WARBURG CLIFF, CORCOPAN GROUP AND CORCORAN GROUP EASTSIDE, INC., DEFENDANTS


The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

Defendants move to dismiss plaintiff's first claim and to stay the remaining claims pending the arbitration of plaintiff's first claim. The parties have consented to my exercising jurisdiction for all purposes pursuant to 28 U.S.C. § 636 (c). For the reasons set forth below, defendants' motion is denied in all respects.

II. Facts

The precise nature of plaintiff's claims in this matter is somewhat unclear because the statement of plaintiff's claims set forth in her opposition to the present motion is inconsistent with the claims set forth in the complaint.

A. Claims Set Forth in the Complaint

This action was commenced in the Civil Court of the City of New York, County of New York, by way of a summons with "indorsed complaint"*fn1 and subsequently removed to this Court.

The summons named all three defendants, directed them to appear and answer within either twenty or thirty days and provided "upon your failure to answer, judgment will be taken against you for the sum of $75,000.00 with interest thereon from the 22nd day of June, 2001, together with attorney's fees and costs of this action."

Annexed to the summons was an indorsed complaint which alleged the following:

First Cause of Action

Action for commissions and/or fees, compensation and/or salary and wages, all in the amount of $25,000.00 due plaintiff for services performed, rendered and completed, pursuant to a contract, agreement, usual practice and law, together with attorney's fees pursuant to statutory authority of the Labor Law of New York and the costs of this action.
Second Cause of Action
Action for damages in the amount of $25,000.00 due plaintiff all as a result of defendants' failure to take and pay appropriate payroll deductions from plaintiff's payroll checks, causing plaintiff to incur additional expenses and causing plaintiff to be denied access to statutory benefits, together with attorney's fees pursuant to statutory authority of the Labor Law of New York and the costs of this action.
Third Cause of Action
Action for damages in the amount of $25,000.00 due plaintiff all as a result of defendants' failure to inform and allow plaintiff to participate in employee benefit programs at Corcoran Group, including, but not limited to health and disability benefits and programs, together with attorney's fees pursuant to statutory authority of the Labor Law of New York and the costs of this action.
Since the summons had a single ad damnum clause, advising the defendants that, in the event of default, a judgment will be taken against "you" in the ...

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