The opinion of the court was delivered by: Dearie, Chief Judge.
For the reasons that follow, plaintiff's motion to remand this removed action to state court is granted.
Plaintiff Hovsep Gregorian commenced this action on or about September 30, 2005 in the Supreme Court of the State of New York, Kings County. He alleges that his former employer, defendant New York Life Insurance Company, discharged him and in other ways discriminated against him on the basis of his age and race, and retaliated against him for complaining about such discrimination, in violation of the anti-discrimination laws of New York State, N.Y. Executive Law § 296 (the "State Human Rights Law"), and New York City, N.Y.C. Admin Code § 8-502 (the "City Human Rights Law").
Two of plaintiff's four causes of action assert age discrimination: the third, in which plaintiff alleges that he "was discharged by defendant because inter alia [sic] he was 51 years old," in violation of the State Human Rights Law, and the fourth, in which plaintiff alleges that "[b]y terminating him because of his age," defendant violated the City Human Rights Law.
Within his state age claim, however, plaintiff also makes the following allegations:
40. Defendant has a policy that if an employee is 55 years old and has worked for the Company for 10 years, he or she will receive an extremely generous retirement package.
42. At the time plaintiff was discharged by defendant, plaintiff had worked for defendant for 20 years. Had defendant not wrongfully terminated plaintiff, but instead continued his employment until he attained the age of 55, plaintiff would have been entitled to defendant's retirement package valued at approximately $1.332 million-which would have guaranteed him no less than $58,000 a year for the rest of his life.
43. Upon information and belief, plaintiff was discharged because inter alia he was 51 years old.
In addition, paragraph one of the complaint avers as follows: "Specifically, defendant illegally discharged plaintiff from his job because he was 51 years old and approaching the vesting of a $1.334 million dollar [sic] pension." Cmplt. ¶ 1 (emphasis added).
On December 14, 2007, more than two years after being served with the complaint, defendant removed the action to this Court. Defendant's position is (i) that plaintiff's age claims, despite their label, actually fall within the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., and (ii) that ERISA preempts the State and City Human Rights Laws, thereby rendering plaintiffs claims under those laws "federal" and thus removable.
As to timing, defendant asserts that removability was not apparent on the face of the complaint but only became so during plaintiff's deposition in November 2007. It was at that proceeding, defendant argues, that plaintiff "changed courses," Def. Ltr. Oct. 31, 2008 at 2, and for the first time revealed that he believed "New York Life had terminated his employment for the purpose of precluding him from vesting in certain pension benefits." Id. In light of that revelation, defendant asserts, it became clear that plaintiff's state-law age discrimination claims were in reality claims "for benefits under Section 502(a)(1)(B)" of ERISA ...