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Estate of Solinsky v. Custodial Maintenance

December 30, 2008

ESTATE OF SOLINSKY, PLAINTIFF,
v.
CUSTODIAL MAINTENANCE, INC., PATRICK M. GOGLIARDO AND DEBRA GOGLIARDO, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

Memorandum, Decision and Order

I. Introduction

Presently before the court is a motion to dismiss the complaint in this action purportedly for lack of subject matter jurisdiction and for failure to state claims upon which relief may be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. Plaintiff is the estate of decedent, Richard Solinsky ("Solinsky"), who was formerly employed by defendant, Custodial Maintenance, Inc. ("CMI"). According to the plaintiff's Complaint ("the Complaint") defendant, Patrick Gogliardo ("Mr. Gogliardo") is "the co-founder, General Manager and President of CMI," Compl. ¶¶ 8, 57, and defendant, Debra Gogliardo ("Ms. Gogliardo") is "the Chairman or Chief Executive of CMI," Compl. ¶¶ 9, 58. This action was commenced by Shirley Solinsky, who is the mother of Richard Solinsky, and the administratrix of his estate ("Plaintiff").

According to the Complaint, Plaintiff alleges that CMI unlawfully discriminated against Solinsky by terminating him based on his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296 et seq. Plaintiff also alleges that Mr. and Ms. Gogliardo aided and abetted CMI's unlawful termination of Solinsky in violation of the NYHRL, N.Y. Exec. Law § 296(6).

II. Legal Standard

When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the allegations of fact in the complaint as true, drawing all reasonable inferences in the plaintiff's favor. See World Religious Relief, Inc. v. Sirius Satellite Radio, Inc., No. 05-CV-8257, 2007 WL 2261549, at *1 (S.D.N.Y. Aug. 7, 2007) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). Additionally, when deciding such a motion, the court may only consider "the factual allegations in the complaint, [...] documents attached to the complaint as exhibits or incorporated by reference, [...] matters of which judicial notice might be taken, and [...] documents either in plaintiff['s] possession or of which [the] plaintiff[] had knowledge and relied on in bringing suit." Muller-Paisner v. TIAA, 446 F.Supp.2d 221, 226-227 (S.D.N.Y.2006) (citing Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (internal citations omitted)) (rev'd in part on other grounds, No. 06-4307-cv, 2008 WL 3842899 (2d Cir. Aug. 15, 2008)).

A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, (2007).*fn1 The Court of Appeals for the Second Circuit has interpreted the foregoing language to require that lower courts apply "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original).

A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is governed by the same standard as a Rule 12(b)(6) motion, "except that a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Friedlander v. Port Jewish Center, - F.Supp.2d -, 2008 WL 5132688, at *2 (E.D.N.Y. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)) (internal quotations omitted).

III. Background

The court will, as it must, accept the following allegations of fact as true for purposes of deciding the pending motion. See World Religious Relief, Inc., 2007 WL 2261549, at *1.

Decedent, Richard Solinsky was employed by CMI from November 2002 through September 2006. During that time he received a favorable job performance rating, had no disciplinary records, and received raises and promotions.

Solinsky was diagnosed as HIV-positive in 1992. In August 2006 Solinsky sought leave from his employment with CMI in order to seek medical treatment due to the ill effects of his HIV-positive condition. At the time he sought medical leave, Solinsky notified Mr. Gogliardo of his HIV-positive status. In September 2006, CMI terminated Solinsky's employment. At the time of his termination, Solinsky held the position of Operations Manager for CMI, for which he was qualified.

CMI contends Solinsky voluntarily terminated his employment. However, Mr. Gogliardo denied Solinsky's request for vacation pay on September 7, 2006. Thereafter, Solinsky filed a claim for unemployment benefits, which CMI failed to contest. Despite the fact that CMI was notified of Solinksy's unemployment claim and given an opportunity to dispute same, CMI failed to do so. CMI's failure to dispute Solinsky's unemployment claim is significant because an individual that resigns from his employment is ineligible to receive unemployment benefits.

In December 2006, Solinsky filed a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On August 23, 2007, Solinsky died as a result of complications related to his HIV positive condition. The EEOC issued its determination on March 25, 2008, finding that Solinsky's employment was terminated "based on pure bias." Compl. ΒΆ 13, Ex. E. On April 7, 2008, the EEOC issued a right-to-sue letter to Solinsky's estate. Shirley Solinsky timely commenced this action on July 3, 2008, having received ...


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