The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendant New York State Electric and Gas Corporation ("NYSEG") moves (Dkt. No. 14) for partial summary judgment dismissing certain causes of action in the complaint filed by plaintiff Lee Robbins ("Robbins"). For the reasons set forth below, the motion is granted insofar as it seeks dismissal of the third and fourth causes of action and otherwise denied.
Robbins' first two causes of action are based on the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. Robbins claims that NYSEG, his employer for thirty-five years, was the administrator and fiduciary of an employee benefit plan provided pursuant to a collective bargaining agreement; that NYSEG wrongfully discharged him on or about March 2004; that NYSEG refused and failed to provide him with information regarding the plans; and that as a result, he was unable to make an informed decisions about his benefits and was wrongfully denied benefits, resulting in financial loss.
The third cause of action is for negligent infliction of emotional distress. Robbins claims that in March 2003, his supervisor asked him when he was going to retire; that Robbins, who was not at retirement age, replied that he had no intention of retiring; that the supervisor then began "a campaign of false allegations against plaintiff, wrongful and destructive criticisms of plaintiff's work, and would not allow plaintiff to work more than an hour of overtime, effective January 1, 2004"; that on March 17, 2004, NYSEG suspended Robbins without pay based upon false allegations that he had sexually harassed other employees; that NYSEG's actions "caused plaintiff to fear for his own safety and mental health"; and that he suffered severe mental, physical, and financial damages.
The fourth cause of action for intentional infliction of emotional distress restates the allegations of the third cause of action and avers that NYSEG "embarked upon a campaign of extreme and outrageous conduct against plaintiff"; that NYSEG's conduct evinced a reckless disregard of a substantial probability that said acts would cause Robbins severe emotional distress; and that he suffered severe emotional distress causing him to become disabled and require medical and psychological treatment.
The fifth and sixth causes of action are based on the New York State Labor Law ("Labor Law"). In the fifth, Robbins claims that under section 195(6) of the Labor Law, he was entitled to notice of termination of his participation in employee benefits within five days of the termination of his employment by NYSEG, and that NYSEG's failure to provide the required notice caused him to sustain financial loss. In the sixth cause of action, Robbins alleges that under section 217 of the Labor Law, he had the right to continue his medical and health insurance, but that NYSEG refused to pay the premiums to retain the coverage, resulting in financial loss.
In the seventh cause of action, Robbins claims that NYSEG, as plan fiduciary, breached its duty to him by failing to pay insurance premiums on his behalf and by otherwise violating ERISA in connection with his benefits.
On March 30, 2004, Robbins filed a complaint with the New York State Division of Human Rights ("NYSDHR") raising state law claims of discrimination based on his age. The NYSDHR complaint set forth essentially the same allegations as in the third and fourth causes of action in the complaint in the case at bar, summarized above. At that point, plaintiff had been placed on unpaid leave but had not yet been terminated.
On April 7, 2004, NYSEG issued a report based on its internal investigation of sexual harassment complaints made against Robbins by five female employees. They reported numerous instances of inappropriate conduct by Robbins occurring between January 1997 and March 2004, including unwanted touching and comments with overt sexual content. They also reported that he made statements about guns and violence that caused them to be afraid of him. Based on this report, NYSEG terminated Robbins.
NYSDHR investigated and on September 23, 2004, issued a Determination and Order After Investigation dismissing the complaint on the ground of no probable cause. NYSDHR stated that NYSEG "offered legitimate non-discriminatory reasons for the actions [it] took against [Robbins], and there is no reason to believe that those actions were the result of illegally discriminatory motives."
Robbins sought judicial review of the dismissal pursuant to section 298 of New York Executive Law. Upon review, New York State Supreme Court affirmed the NYSDHR determination of no probable cause, finding that it "has a rational basis and is not arbitrary and capricious." Supreme Court added that all of NYSEG's assertions of fact were borne out by documentation, ...