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Costa v. Astoria Federal Savings and Loan Association

United States District Court, E.D. New York

February 4, 2014


For the Plaintiff: Gary Schoer, Esq., Syosset, NY.

For the Defendants: Adam Granek Guttell, Esq., Mark S. Mancher, Esq., of Counsel, Jackson Lewis, PC, Melville, NY.


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ARTHUR D. SPATT, United States District Judge.

On March 26, 2013, the Plaintiff Marie C. Costa, also known as Connie Marie

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Costa (the " Plaintiff" ) commenced this action under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1001 et seq., against the Defendants Astoria Federal Savings and Loan Association (" Astoria" ) and Trustees of the Astoria Savings and Loan Association Employees' Pension Plan (the " Trustees" and collectively, the " Defendants" ). The Plaintiff accuses the Defendants of wrongly denying her pension benefits under the terms of Astoria's Employees' Pension Plan (the " Plan" ), which was an employee welfare benefits plan funded by Astoria, the Plaintiff's former employer.

In this regard, the Plaintiff asserts (1) that the Defendants wrongfully and unfairly denied her the pension benefits to which she is allegedly entitled by law and pursuant to the Plan, in violation of 29 U.S.C. § 1132(a)(1)(B); (2) that she is entitled to a declaratory judgment concerning her rights to future benefits due under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B); (3) that the Defendants breached their fiduciary duty in violation of 29 U.S.C. § § 1132(a)(1) and (2); and (4) that she is entitled to recover her reasonable attorney's fees and costs incurred in bringing this action and enforcing her alleged rights under the Plan pursuant to 29 U.S.C. § 1132(g)(1).

Further, in addition to her four ERISA claims, the Plaintiff alleges five state law causes of action as follows: (1) breach of contract; (2) breach of common law fiduciary duty; (3) fraud; (4) violation of New York General Business Law (" NYGBL" ) § 349; and (5) negligence.

Presently before the Court is a Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) motion by the Defendants to dismiss the Plaintiff's Complaint in its entirety. For the reasons that follow, the Court grants the Defendants' motion.


A. Rule 12(b) Standard for Considering Factual Allegations and Evidence Outside the Complaint

Before reciting the underlying factual allegations of this case, the Court notes, as an initial matter, that evidence outside of the Complaint may not be considered by the Court when deciding a motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6).See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010) (" In ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6), the duty of a court is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." ) (citation and internal question marks omitted); Hahn v. Rocky Mt. Express Corp., No. 11 Civ. 8512(LTS) (GWG), 2012 WL 2930220, at *2 (S.D.N.Y. June 16, 2012) (" When deciding a motion to dismiss . . . [e]vidence outside [the complaint] . . . cannot [ ] be considered on review of a 12(b)(6) motion." ) (citation and internal quotation marks and alterations omitted). In this regard, pursuant to Fed.R.Civ.P. 12(d), where matters outside the complaint are presented in connection with a Rule 12(b)(6) motion, " a district court must either 'exclude the additional material and decide the motion on the complaint alone' or 'convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.'" Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Bd. of Managers of Continental Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)).

In this case, the Court declines to convert the Plaintiff's motion for dismiss to one for summary judgment. Thus, while the Plaintiff in her opposition asserts additional factual allegations not included in her Complaint, these new factual allegations

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are inappropriate for consideration by this Court. See, e.g., Universal Trading & Inv. Co., Inc. v. Tymoshenko, No. 11 Civ. 7877(PAC), 2012 WL 6186471, at *1 (S.D.N.Y. Dec. 12, 2012) (" '[N]ew facts and allegations, first raised in a Plaintiff's opposition papers, may not be considered' in deciding a motion to dismiss." ) (quoting Simone v. U.S., No. 09-CV-3904 (TCP)(AKT), 2012 WL 4891617, at *6 (E.D.N.Y. Oct. 9, 2012)). Nevertheless, in its analysis, the Court may refer " to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [the] [P]laintiff['s] possession or of which [the] [P]laintiff[ ] had knowledge and relied on in bringing suit." Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir.1993).

In this regard, the Court declines to consider those portions of the Plaintiff's Affidavit in which she (1) expands upon when she first contacted the Defendants in October of 2005 about her pension benefits and (2) suggests, for the first time, that she wrote to the Defendants on August 21, 2012, October 16, 2012 and December 18, 2012 concerning her eligibility for pension benefits but received no response. These new factual allegations fail to meet the criteria to allow for their consideration on a motion to dismiss and, in any event, as discussed below, even if the Court were to consider them, the Court's decision to dismiss the Plaintiff's Complaint would remain unchanged. See Ruotolo v. Fannie Mae, 933 F.Supp.2d 512, 515 n.1 (S.D.N.Y. 2013) (" When determining a motion to dismiss for failure to state a claim, a court is confined to the facts as pleaded in the complaint and any permissible attachments, and a court should not consider new facts alleged in moving papers.. . . Nonetheless, the outcome here would not change were the Court to consider the additional facts in pro se Plaintiff's opposition papers." ) (citing Civic Ctr. Motors, Ltd. v. Mason St. Imp. Cars, Ltd., 387 F.Supp.2d 378, 382 (S.D.N.Y. 2005)).

Thus, unless otherwise stated, the Court, as it must, draws the following facts from the Plaintiff's Complaint and construes them in a light most favorable to the Plaintiff. Ashcroft v. Iqbal, 556 U.S. ...

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