The opinion of the court was delivered by: Conner, Sr. D.J.
Plaintiffs Candida Costabile ("C. Costabile"), as guardian ad litem for Anthony Costabile, and Anthony Costabile, individually, ("A. Costabile")*fn1 (collectively, "plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 and the N.Y. EXEC. LAW, Art. 15, HUMANRIGHTSLAW§ 296 (the "NYSHRL") against the County of Westchester (the "County"), Frank Bonfonte ("Bonfonte"),*fn2 Roy Shapiro ("Shapiro")*fn3 and Roberto Alancarta ("Alancarta") (collectively, "defendants").*fn4 Plaintiffs allege that defendants discriminated against A. Costabile on the basis of his disability by subjecting him to harassment during the course of his employment with the Parks Department, and suspending him for four days and ultimately terminating his employment without justification, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the NYSHRL.*fn5 Defendants move to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) and (6), citing plaintiffs' failure to serve a notice of claim upon defendants as required by N.Y. COUNTY LAW, Art. 2, § 52 and N.Y. GEN. MUN. LAW, Art. 4, § 50-i, and contending that the Amended Complaint does not state a claim upon which relief can be granted. Plaintiffs filed a cross-motion to serve a late notice of claim pursuant to N.Y. GEN. MUN. LAW, Art. 4, § 50-e. For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiffs' cross-motion is denied in its entirety.
The following discussion of the facts is derived from the allegations of plaintiffs' Amended Complaint.*fn6 A. Costabile was diagnosed with ADHD and NLD as a young child and has had a long history of learning disabilities. (See Am. Complt. ¶¶ 10-11.) In June 2002, he was employed by the County in its Parks Department at Glen Island Park in New Rochelle, New York. (See id. ¶ 12.) Due to his mental condition, he was substantially limited in the kind of work he could perform and required "constant direction and supervision" when performing his job tasks. (See id. ¶ 11.) His job duties included landscaping, garbage pick-up and general maintenance duties. (See id. ¶ 12.) At all relevant times, defendants were aware of plaintiff's disabilities. (See id. ¶ 13.)
Plaintiffs allege that Alancarta, as A. Costabile's direct supervisor, subjected him to "numerous vicious acts of discriminatory treatment due to his condition[.]" (See id. ¶ 14.) Specifically, plaintiffs allege that Alancarta, inter alia: (1) tied him to a tree with "shrink wrap" and threatened him with undesirable jobs, including cutting the grass with scissors, and suspension without pay if he was unable to free himself from the tree in a certain amount of time; (2) tied him to a chair and wrapped his feet with "shrink wrap" so that he was unable to move; (3) tied him to a chair with wheels using "shrink wrap," rolled the chair into the parking lot and hosed him down with water; (4) tied him to a chair with "shrink wrap" and ignited the "shrink wrap" when plaintiff proved unable to get free; (5) dumped buckets of cold water on him while he was tied to chairs, causing him to struggle to get free and strain his muscles in his legs and develop a hernia, which eventually required surgery; and (6) subjected him to verbal ridicule, such as calling him a "retard," "stupid" and "idiot." (See id.) They allege that Alancarta targeted A. Costabile due to his mental disabilities. (See id.)
As to Bonfonte and Shapiro, plaintiffs allege that they "participated in, witnessed and/or were aware of the discriminatory and unlawful conduct directed against [A.] Costabile, and refused and neglected to take any actions to stop the harassment or otherwise prevent future grievous acts directed against [him.]" (See id. ¶ 18.) On information and belief, they allege that Bonfonte and Shapiro took similar actions toward other disabled employees, and that their actions "were part of a pattern of misconduct and harassment toward disabled individuals that was known by the County." (See id. ¶ 21.) Furthermore, plaintiffs allege that "the County failed to adequately train, supervise and discipline Bonfonte or Shapiro in such a way that it amounted to a deliberate indifference to the rights of County employees who worked for them." (See id. ¶ 22.)
Plaintiffs also allege that Alancarta wrongfully suspended A. Costabile for purportedly unloading a truck too slowly. (See id. ¶ 15.) Alancarta told him that he could avoid suspension if he "jump[ed] off the Glenn Island Bridge, subject[ed] another co-worker to a soaking with a hose, or pa[id] Alancarta a designated sum of money." (See id. ¶ 16.) When A. Costabile refused to comply, Alancarta suspended him from work for four days. (See id.) Subsequently, on July 7, 2004, defendants terminated A. Costabile's employment, purportedly because he left work fifteen minutes early without permission from a supervisor. (See id. ¶ 17.) Plaintiffs claim, however, that A. Costabile was given express permission to leave work early by Mike Tomanelli, the acting supervisor on site at that time, (see id. ¶ 17) and contend that defendants' decision to terminate his employment was predicated upon their animus towards him as a result of his disabilities. (See id. ¶¶ 25, 28, 30, 39, 42.)
Defendants now move to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) and (6). As a jurisdictional matter, defendants contend that all state law claims must be dismissed because plaintiffs failed to serve a notice of claim upon defendants pursuant to N.Y. COUNTY LAW, Art. 2, § 52 and N.Y. GEN. MUN. LAW, Art. 4, § 50-i. Plaintiffs, in response, seek leave to serve a late notice of claim. In addition, defendants seek dismissal of plaintiffs' claims pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
When ruling on a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1) and (6), the Court must accept all of the well-pleaded facts as true and consider those facts in the light most favorable to the plaintiff. See Triestman v. Fed. Bureau of Prisons,470 F.3d 471, 474 (2d Cir. 2006); Natural Res. Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); see also McCarthy,2007 WL 967937, at *4; Hertz Corp., 1 F.3d at 125; In re AES Corp., 825 F. Supp. at 583. "'The appropriate inquiry is not whether a plaintiff is likely to prevail, but whether he is entitled to offer evidence to support his claims.'" Cohane v. Nat'l Collegiate Athletic Ass'n ex rel. Brand, No. 05-5860-cv, 2007 WL 247710, at *1 (2d Cir. Jan. 25, 2007) (quoting Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005)). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). "'This rule applies with particular force where the plaintiff alleges civil rights violations . . . .'" Cohane, 2007 WL 247710, at *1 (quoting Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002)). However, allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
It is well-established that a party bringing a claim pursuant to the NYSHRL against a county located in the State of New York must serve a notice of claim upon the county within ninety days after the claim arises. See N.Y. COUNTY LAW, Art. 2, § 52 ("Any claim . . . against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature, and whether casual or continuing trespass or nuisance and any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law."); N.Y. GEN. MUN. LAW, Art. 4, § 50-i ("No action . . . shall be prosecuted or maintained against a . . . county . . . for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such . . . county . . . unless . . . a notice of claim shall have been made and served upon the . . . county . . . in compliance with section fifty-e of this chapter . . . ."); N.Y. GEN. MUN. LAW, Art. 4, § 50-e ("In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action . . . , the notice of claim shall . . . be served . . . within ninety days after the claim arises . . . ."); see also Mills v. County of Monroe, 59 N.Y.2d 307, 308, 451 N.E.2d 456, 464 N.Y.S.2d 709 (1983) ("When an employment discrimination action is brought against a county under the State . . . civil rights statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court."); Santiago v. Newburgh Enlarged City Sch. Dist., 434 F. Supp. 2d 193, 196 (S.D.N.Y. 2006) (applying the notice of claim requirement to claims brought under the NYSHRL); Falchenberg v. N.Y. City Dep't of Educ., 375 F. Supp. 2d 344, 350-51 (S.D.N.Y. 2005) (same). In the present case, it is undisputed that plaintiffs have failed to comply with this condition precedent and, accordingly, plaintiffs seek leave to serve a late notice of claim pursuant to N.Y. GEN. MUN. LAW, Art. 4, § 50-e(5). N.Y. GEN. MUN. LAW, Art. 4, § 50-e(5) provides: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim . . . ." However, "[a]ll applications under this section [must] be made to the [state] supreme court or to the county court . . . ." N.Y. GEN. MUN. LAW, Art. 4, § 50-e(7). Accordingly, we lack jurisdiction to decide plaintiffs' application to serve a late notice of claim. See Brown v. Massena Mem'l, No. 99-CV-1729, 2000 WL 381941, at *7 (N.D.N.Y. Apr. 11, 2000) ("[T]his court is without power to grant [plaintiff] leave to file a late notice of claim as such applications must be made to a state supreme or county court. See N.Y. GEN. MUN. LAW § 50-e(7) (McKinney 1999). The court simply is without jurisdiction to entertain [plaintiff's] putative motion for leave to file a late notice of claim."); Polite v. Button, 999 F. Supp. 705, 708 (N.D.N.Y. 1998) ("This Court therefore is without jurisdiction to entertain plaintiff's motion for leave to file a late notice of claim."); Covington v. Westchester County Jail, No. 96 Civ. 7551, 1997 WL 580697, at *5 (S.D.N.Y. Sept. 18, 1997) ("As a result [of N.Y. GEN. MUN. LAW, Art. 4, § 50-e(7)], this court has no authority to consider the application to file a late notice of claim."); Russell Pipe & Foundry Co. v. City of New York, No. 94 Civ. 8642, 1997 WL 80601, at *15 (S.D.N.Y. Feb. 25, 1997) ("The law is clear that a federal court lacks jurisdiction to entertain a motion to file a late notice of claim, as General Municipal Law § 50-e(7) requires that all such applications 'shall be made to the supreme court or county court.'").*fn7 Accordingly, because plaintiffs have not served a timely notice of claim as required by N.Y. COUNTY LAW, Art. 2, § 52 and N.Y. GEN. MUN. LAW, Art. 4, § 50-e, and we have no jurisdiction to grant plaintiffs' application for leave to serve a late notice of claim, plaintiffs' state law claims against the County are dismissed.*fn8
Defendants further argue that plaintiffs' state law claims against Bonfonte, Shapiro and Alancarta (the "individual defendants") must also be dismissed because they too require service of a notice of claim upon the County. However, service of a notice of claim is not a condition precedent to the commencement of an action against a county's employees or agents unless the county is required to indemnify the individual defendants. See N.Y. GEN. MUN. LAW, Art. 4, § 50-e(1)(b). "The County's duty to indemnify [its] employees turns on whether they were acting within the scope of their employment . . . ." Grasso v. Schenectady County Pub. Library, 30 A.D.3d 814, 818, 817 N.Y.S.2d 186 (3d Dep't 2006); see also Int'l Shared Servs., Inc. v. County of Nassau, 222 A.D.2d 407, 408, 634 N.Y.S.2d 722, 724 (2d Dep't 1995) ("The obligation to indemnify . . . depends upon the resolution of the fact-sensitive question of whether [the individual defendants] were acting within the scope of their employment with [the County] in committing the alleged [wrongful] acts." (citing Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979); Overton v. Ebert, 180 A.D.2d 955, 580 N.Y.S.2d 508 (3d Dep't 1992); Beare v. Byrne, 103 A.D.2d 814, 478 N.Y.S.2d 44 (2d Dep't 1984), aff'd 67 N.Y.2d 922, 493 N.E.2d 238, 502 N.Y.S.2d 135 (1986))). Accepting the allegations in the Amended Complaint as true, as we must at this stage, the conduct of defendants appears to fall outside the scope of their employment, and defendants do not argue otherwise. See Grasso, 30 A.D.3d at 818 (finding that the defendants' alleged sexual harassment fell outside of the scope of employment for purposes of N.Y. GEN. MUN. LAW, Art. 4, § 50-e). Accordingly, on this record, dismissal of plaintiffs' claim against the individual defendants is not warranted based upon plaintiffs' failure to serve a notice of claim. See Silverman v. City of New York, No. 98-CV-6277, 2001 WL 218943, at *10 (E.D.N.Y. Feb. 2, 2001) ("Because it is too early in the litigation to determine whether the City is not obligated to indemnify the individual defendants (thus disposing of the need for a notice of claim), plaintiff's claims against the individual defendants may not be dismissed on the ground of a flawed notice of claim."); Cipolla v. County of Rensselaer, 129 F. Supp. 2d 436, 457 (N.D.N.Y. 2001) ("At this ...