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Russo v. 210 Riverside Tenants

July 14, 2010

ANTHONY E. RUSSO, PLAINTIFF,
v.
210 RIVERSIDE TENANTS, INC., HALSTEAD MANAGEMENT COMPANY LLC, MICHAEL TAMBASCO, ELJIO BERISHA, LOCAL 32BJ: SERVICE EMPLOYEES INTERNATIONAL LABOR UNION, AND REALTY ADVISORY BOARD ON LABOR RELATIONS INC., DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Plaintiff Anthony Russo ("plaintiff") has filed suit against 210 Riverside Tenants, Inc. ("210"), Halstead Management Company LLC ("Halstead"), Local 32BJ Service Employees International Labor Union (the "Union")*fn1 , Realty Advisory Board on Labor Relations Inc. (the "RAB"), Michael Tambasco ("Tambasco"), and Eljio Berisha ("Berisha") (collectively, the "defendants") following the termination of his employment. On May 19, 2010, the RAB moved to dismiss each of the plaintiff's claims against the RAB. For the following reasons, the RAB's motion is granted.

BACKGROUND

The following facts, taken from the plaintiff's April 9, 2010 second amended complaint (the "Complaint") and documents integral to the Complaint are assumed to be true in deciding this motion.*fn2 Only those facts relevant to the instant motion are set forth below.

Plaintiff is a member of the Union. In or about July 2009, plaintiff was hired as a doorman at 210 Riverside Drive (the "Building"). The Building is owned by 210 and managed by Halstead, and its doormen's employment is governed by the collective bargaining agreement ("CBA") concluded between the Union and the RAB.*fn3

While employed at the Building, plaintiff worked two nights per week from 11:30 pm until 7:30 am and Sundays from 3:30 pm until 11:30 pm. Plaintiff repeatedly requested that he be allowed a meal period during his Sunday shifts, but Berisha, the building superintendent, told plaintiff that there were no breaks on Sundays. Plaintiff, who regularly takes "life-sustaining medication,"*fn4 explained to Berisha that he would need to leave the Building promptly after each shift to return home and take his medication. The doorman who relieved the plaintiff was usually fifteen to thirty minutes late on days when plaintiff worked the overnight shift. This pattern of lateness caused the plaintiff to "miss his daily regimen of medication on several occasions."

On the morning of January 7, 2010, plaintiff waited more than thirty minutes past the end of his shift for the next doorman to arrive. Plaintiff then received a telephone call from his replacement, who told plaintiff that he was "down the block." After receiving this call, and believing that the next doorman was nearby, plaintiff left the building to take his medication.

Sometime after January 7, Berisha requested that the plaintiff attend a meeting with the Building's property manager on the afternoon of January 13 (the "Meeting"). Although Frank Monaco ("Monaco"), a Union representative, told the plaintiff that he would attend the Meeting, no Union representative came to the Meeting. At the Meeting, the plaintiff was suspended until further notice. Plaintiff was notified on January 22 that his employment was being terminated.

On or about February 1, the Union sent the RAB a letter (the "February 1 Letter") reporting the plaintiff's claim that he had been "unjustly suspended" and instructing the RAB to "hold the matter in abeyance until further notification" because the claim was "being referred to Local 32BJ's Grievance Appeal Board." The RAB has not taken any action with regard to the suspension or termination of plaintiff's employment.

PROCEDURAL HISTORY

Plaintiff filed this action pro se in New York Supreme Court, New York County, on January 19, 2010. The Union removed the case to federal court on February 4. Plaintiff, thereafter acting through counsel, filed an amended complaint on February 22, and a second amended complaint on April 9. It pleads two claims against the RAB: breach of the CBA and violation of New York Labor Law § 162.

On May 18, the RAB moved to dismiss both claims brought against it. The motion was fully submitted on June 17.

DISCUSSION

"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009). This rule "does not require 'detailed factual allegations,'" id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), but "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at ...


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