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United States District Court, S.D. New York

December 21, 2005.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Vincent Treanor, a former employee of the Long Island Rail Road ("LIRR"), brings this action against the Metropolitan Transportation Authority ("MTA") and the LIRR alleging employment discrimination on the basis of disability in violation of the New York State Human Rights Law*fn1 and the New York City Human Rights Law.*fn2 He also claims that defendants violated the notice requirements of the Consolidated Omnibus Budget Reconciliation Act ("COBRA").*fn3 The LIRR now moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the LIRR's motion to dismiss is denied.*fn4


  Treanor began working at the LIRR on or about April 12, 1989, as a car appearance maintainer.*fn5 He was promoted to car repairman in August 1999, and then to road car inspector in June 2002.*fn6 The LIRR learned that Treanor abused drugs and alcohol on or about October 7, 1994.*fn7 On October 10, 2002, Treanor was involved in a work related accident which resulted in a knee injury requiring arthroscopic surgery.*fn8 Treanor submitted to a return-to-duty physical examination, which included a drug test, on November 26, 2002.*fn9 On November 29, 2002, Treanor tested positive for cocaine, and he was removed from service pending a Notice of Trial and Hearing for violation of the Corporate Alcohol and Substance Abuse Policy.*fn10

  At a February 14, 2003 hearing, Treanor admitted to the charge of violating the substance abuse policy, waived his right to a trial and signed a Last Chance Agreement.*fn11 Pursuant to the agreement Treanor was required to serve an eleven month suspension and had to be certified ready to return to work by the LIRR Employee Assistance Program ("EAP").*fn12 Failure to abide by the agreement would result in Treanor's dismissal.*fn13 As part of his EAP recovery plan, Treanor was required to enroll in an out-patient drug treatment program at Crossings Recovery Center in Deer Park, New York.*fn14 The cost of the program was paid for by his employer-provided health insurance.*fn15 On May 14, 2003, Crossing Recovery Center informed Treanor that his medical insurance had been discontinued and that he would have to pay if he wished to continue in the program.*fn16 Treanor then asked to be drug tested at the LIRR facilities because he could not afford to pay for the tests.*fn17 Treanor was told that he could not be drug tested at the LIRR facilities and that he had to pay the costs of completing the Crossing Recovery Center program.*fn18

  On May 15, 2003, Treanor was advised for the first time by his union representative that health insurance coverage ceases when an employee has been out of work for more than six months.*fn19 Treanor claims he was unable to complete the EAP plan without COBRA replacement insurance because he could not afford to pay for treatment and drug tests.*fn20 On September 30, 2003, Treanor was charged with violating the Last Chance Waiver Agreement.*fn21 At the hearing, Treanor was told that he must either resign or be terminated.*fn22 He was informed that if he was terminated he would lose his LIRR pension, and would not be able to use the LIRR as a reference for future employment.*fn23 On September 30, 2003, Treanor resigned.*fn24

  On May 23, 2005, Treanor filed a complaint in the Supreme Court, New York County. Treanor alleged that: (1) the Last Chance Agreement violated COBRA because the LIRR provided a last chance that it knew or should have known could not be completed because the LIRR discontinued his medical insurance;*fn25 (2) the LIRR discriminated against him on the basis of his disability by treating him differently from other similarly situated employees in violation of the State and City Human Rights Laws;*fn26 (3) the LIRR constructively terminated him because of his disability;*fn27 and (4) the LIRR violated the notice requirements of COBRA.*fn28

  The LIRR removed the case to this Court and then moved to dismiss, claiming that Treanor's complaint was untimely because it was not filed within one year and thirty days of Treanor's termination.*fn29 The LIRR also claimed that the Complaint was defective because it failed to allege that at least thirty days had elapsed since the claims upon which the action was founded were presented to the LIRR, and that the LIRR neglected or refused to make adjustment or payment with respect to those claims.*fn30


  A. Motion to Dismiss

  Under Rule 12(b)(6) of the Federal Rules of Civil Procedure a motion to dismiss should be granted only 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.'"*fn31 The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn32 When deciding a motion to dismiss courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor.*fn33 Courts generally do not consider matters outside the pleadings but may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings.*fn34

  B. New York Public Authorities Law

  Section 1276 of the New York Public Authorities Law ("PAL") provides for a shortened limitations period and a thirty-day demand rule for tort actions against the MTA and its subsidiaries, including the LIRR.*fn35 The statute provides, in relevant part:

(1) As a condition to the consent of the state to such suits against the [LIRR], in every action against the [LIRR] for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the [LIRR] or other officer designated for such purpose and that the [LIRR] has neglected or refused to make an adjustment or payment thereof.
(2) An action against the [LIRR] founded on tort, except an action for wrongful death, shall not be commenced more than one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been served on the [LIRR] within the time limited by and in compliance with all the requirements of section fifty-e of the general municipal law.*fn36
Section 1276(1) of the PAL tolls the one year limitation period of section 1276(2) for thirty days.*fn37 As a result, the net limitation period governing a tort action against the LIRR is one year and thirty days.*fn38 Nearly identical requirements apply to actions against the New York City Transit Authority under section 1212 of the PAL,*fn39 and New York courts have interpreted these provisions consistently.*fn40 These statutes were "designed for traditional tort actions" and should not be used "as a sword rather than a shield or as a trap to catch the unwary or ignorant."*fn41

  C. Statute of Limitations Under Section 214 of the New York Civil Practice Law and Rules

  Actions to recover upon a liability "created or imposed by statute" are generally governed by the three-year statute of limitations period set forth in section 214(2) of the CPLR, "unless a different time is prescribed by law."*fn42 This statute of limitations governs claims of employment discrimination on the basis of disability in violation of the New York State Human Rights Law and the New York City Human Rights Law.*fn43 Congress neglected to provide a statute of limitations for claims arising under COBRA. Accordingly, a court must apply the limitations period of the state law cause of action most analogous to the COBRA claim.*fn44 There has not been complete agreement among federal courts on how to analogize COBRA's notice requirements to any state law.*fn45 Some jurisdictions have determined that the best analogy is to a claim for unfair insurance practices.*fn46 In Myers v. King's Daughters Clinic, the court held that the purpose of COBRA "was to provide employees with an opportunity to continue to receive group health insurance after the occurrence of a qualifying event, e.g. termination."*fn47 Failing to notify an employee of his right to receive health insurance can be characterized as an unfair insurance practice. New York has a three-year statute of limitations for claims of unfair insurance practices under section 214(2) of the CPLR.*fn48 I conclude that New York's three-year statute of limitations applies to claims under COBRA.


  A. Treanor's Claims Are Not Time-Barred Under Section 1276(2) of the PAL

  Treanor alleges that he was terminated on September 30, 2003, and that he filed this Complaint on May 23, 2005, within the three-year statute of limitations set forth in section 214(2) of the CPLR. The LIRR argues that Treanor's employment discrimination and COBRA claims are "founded on tort," and therefore time-barred under the one year and thirty day limitations period of section 1276(2) of the PAL.

  1. Employment Discrimination Claims

  Section 1276(2) of the PAL does not govern Treanor's employment discrimination claims. This Court has already held that a nearly identical section of the PAL, is "not applicable to employment discrimination claims because they are not tort actions."*fn49 This holding accords with New York cases reasoning that a discrimination claim is not a tort because it is "a new statutory cause of action which was not cognizable at common law."*fn50

  This Court declines to follow the reasoning of Gaughan v. Nelson, a 1995 Southern District of New York case holding that section 1276(2) applies to discrimination claims.*fn51 Gaughan relies on a line of cases interpreting section 50-e of the New York General Municipal Law ("GML"), which requires that claimants give notice of any claim "founded upon tort" to the appropriate municipal authority.*fn52 These cases are not helpful because they interpret section 50-e in conjunction with other statutory provisions which apply to classes of claims that are both broader*fn53 and narrower*fn54 than those "founded on tort."*fn55 In addition, since Gaughan, the majority of cases interpreting section 50-e of the GML have held that it does not apply to discrimination claims.*fn56

  2. COBRA Claim

  Section 1276(2) does not govern Treanor's COBRA claim. COBRA requires an employer to notify its plan administrator of a qualifying event, such as termination, within thirty days of that event.*fn57 Treanor has alleged that the LIRR's violation of COBRA's notice provisions resulted in his constructive termination.*fn58 The LIRR argues that section 1276(2) governs Treanor's COBRA claim because it can be analogized to a tort claim for negligence.*fn59

  But Treanor's claim is not dependent on any tort theory. Like a discrimination claim, a COBRA claim is purely a creature of statute not previously cognizable as a tort at common law. One court has rejected the analogy of a violation of COBRA's notice requirement to a tort such as a personal injury claim or damage to personal property.*fn60 As noted earlier, the statute of limitations for a COBRA claim is best analogized to a statutory claim of unfair insurance practices.*fn61 New York courts have held that other insurance-related claims founded on statute are not torts subject to notice of claim requirements under similar statutes.*fn62

  B. The Thirty-Day Demand Rule of Section 1276(1) of the PAL Does Not Apply to Treanor's Claims The LIRR argues that even if the statute of limitations of section 1276(2) does not apply to this action, Treanor's claims for damages should be dismissed for failure to comply with the thirty-day demand rule of section 1276(1). Section 1276(1) applies to "every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death." The LIRR argues that the provision should be read broadly to include any action for damages. I have already rejected this same argument in the context of the nearly identical language of section 1212(1) of the PAL, holding that "[c]ourts have refused to interpret [this section] literally and apply the notice of claim requirement to all actions for damages. Rather, courts have limited its application to tort actions."*fn63 This Court reads the provision narrowly, to include only actions for damages related to injuries to property, personal injuries, or death. It is apparent from the statutory scheme that the provision is intended to apply to tort actions.*fn64 The LIRR points to no case in which a court applied section 1276(1), or any similar statute, to a claim for damages not sounding in tort. Because Treanor's claims do not sound in tort, the LIRR's motion to dismiss Treanor's claims based on section 1276 is denied.


  For the foregoing reasons, the LIRR's motion to dismiss is hereby denied. The Clerk of the Court is directed to close this motion [10]. A conference is scheduled for January 6, 2006 at 1 p.m.



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