Opinion
Index No. 108003/2010
01-14-2013
TAMIKA GREEN, Plaintiff v. VERIZON NEW YORK, INC., MARGARET BRADLEY, individually, and KAREN EVANS, individually, Defendants
DECISION AND ORDER
LUCY BILLINGS, J.S.C.:
I. BACKGROUND
Plaintiff, an employee of defendant Verizon New York, Inc., sues defendants for retaliating against her after she complained about defendants' alleged unlawful disclosure of customer information. Plaintiff also sues for discrimination based on race, sex, and disability. Defendants move to dismiss her Second Amended Complaint based on its failure to state a claim. C.P.L.R. § 3211(a)(7). Plaintiff cross-moves to amend her complaint again, to add an allegation that defendants' unlawful disclosure of customer information posed specific dangers to the public. C.P.L.R. § 3025(b).
II. PLAINTIFF'S MOTION TO AMEND HER COMPLAINT
A. STANDARDS FOR AMENDING THE COMPLAINT
C.P.L.R. § 3025(b) permits amendments to a complaint as long as the they do not unfairly surprise or otherwise substantially prejudice defendants, Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 (1st Dep't 2011); Jacobson v McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 655 (1st Dep't 2009); Thompson v. Cooper, 24 A.D.3d 203, 205 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354-55 (1st Dep't 2005), and the proposed claims, as alleged, are meritorious. Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421 (1st Dep't 2006); Thompson v. Cooper, 24 A.D,3d at 205; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 355 (1st Dep't 2005); Watts v. Wing, 308 A.D.2d 391, 392 (1st Dep't 2003). Plaintiff bears the burden to demonstrate her proposed claims' merit through admissible evidence. Hoppe v. Board of Directors of 51-78 Owners Corp., 49 A.D.3d 477 (1st Dep't 2008); Nathanson v. Tri-State Constr. LLC, 48 A.D.3d 373, 374 (1st Dep't 2008); Robinson v. Canniff, 22 A. D.3d 219, 220 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355. B. PREJUDICE
The proposed Third Amended Complaint will not prejudice defendants because they were well aware of the additional claims from the current version of the complaint. Based on the allegations in the current, Second Amended Complaint alone, which must be accepted as true for purposes of the pending motions, defendants were already aware of the unlawful acts and harms alleged by plaintiff, precisely because she complained of them to defendants. Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d at 504; Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d at 655; Thompson v. Cooper, 24 A.D.3d at 205; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 354-55. C. THE PROPOSED CLAIM7S MERITS
1. The Elements of the Claim
Plaintiff's proposed Verified Third Amended Complaint alleges that the release of information posed a laundry list of potential harms "such as identity theft, assault, larceny and credit card fraud." Aff. of Stephanos Zannikos (Apr. 29, 2011) Ex. A ¶ 24. By alleging a risk of assault, plaintiff sets forth a physical harm that is more than mere financial harm or breach of protocol and thus sustains a claim under New York Labor Law § 740. See Remba v. Federation Empl. & Guidance Serv., 76 N.Y.2d 801, 802 (1990); Susman v. Commerzbank Capital Mkts. Corp., 95 A.D.3d 589, 590 (1st Dep't 2012); Katz v. Quality Bldg. Servs., 81 A.D.3d 558, 559 (1st Dep't 2011).
Although defendants' actions as alleged by plaintiff would not violate all the laws plaintiff cites, the alleged disclosure does violate New York Penal Law § 250.25(4) because defendants did, without their customers' permission, "knowingly divulge to another person the content or nature . . . of a telephonic or telegraphic communication." Plaintiff also alleges that defendants violated 47 U.S.C. § 222(c) (1) by failing to protect the confidentiality of customer proprietary network information as defined in § 222(h)(1). Exceptions to these statutory provisions for disclosure of known criminal transactions, N.Y. Penal Law §§ 250.25(4), 250.35, or disclosure otherwise required by law, 47 U.S.C. § 222(c) (1), do not apply here precisely because plaintiff alleges that defendants disclosed customer information that was unrelated to a criminal transaction and that was not requested or was beyond the scope requested by subpoena and thus not required by law,
2. Statute of Limitations
Plaintiff commenced this action June 17, 2010. She alleges retaliatory actions by defendants after June 17, 2009, within the one year statute of limitations. N.Y. Labor Law § 740(4)(a). Many if not all the retaliatory actions alleged by plaintiff after June 17, 2009, are more than mere consequences of defendants' earlier acts, but are discrete, new hostile acts. For example, plaintiff alleges that before June 17, 2009, defendants imposed new scheduling requirements on her. She then alleges not merely that those scheduling requirements remained in place or that she was marked late for failing to abide by the schedule after June 17, 2009, but rather that defendants falsely marked her late in retaliation for her complaints. Her claims did not accrue only upon defendants' earlier retaliatory acts, but instead formed a continuing pattern of retaliation toward plaintiff, from which the limitations period continued to run. Dobson v. Loos, 277 A.D.2d 1013 (4th Dep't 2000). See Donas v. City of New York, 62 A.D.3d 504, 505 (1st Dep't 2009). Therefore the court grants plaintiff's cross-motion to amend her complaint.
III. DEFENDANTS' MOTION TO DISMISS THE COMPLAINT AS AMENDED
A. APPLICABLE STANDARDS
Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). See C.P.L.R. § 3211(a)(1); Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2012); Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 650 (1st Dep't 2011); McCully v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep't 2009). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Walton v. New York State Dept. of Correctional Services, 13 N.Y.3d 475, 484 (2009); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326; Wadiak v. Pond Management, LLC, ___ A.D.3d ___, 955 N.Y.S.2d 51, 52 (1st Dep't 2012). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Nonnon v. City of New York, 9 N.Y.3d at 827; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010). B. PLAINTIFF'S LABOR LAW AND HUMAN RIGHTS LAW CLAIMS
For the same reasons the court accepts plaintiff's Third Amended Complaint, plaintiff states a claim against defendants for violation of Labor Law § 740. The court therefore denies defendants' motion to the extent that the motion seeks to dismiss plaintiff's claim under Labor Law § 740.
Plaintiff does not state a claim for retaliation under the New York City or State Human Rights Law, because plaintiff nowhere alleges that she opposed or complained about the discrimination she alleges. N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7). Moreover, her claims under Labor Law § 740 preclude her claims under the City and State Human Rights Laws for discrimination and retaliation on the basis of race and sex. N.Y. Labor Law § 740(7). Plaintiff does not allege incidents of discrimination against her based on race and sex that are distinct from the alleged incidents of retaliation in violation of Labor Law § 740. Bones v. Prudential Fin., Inc., 54 A.D.3d 589 (1st Dep't 2008); Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp. 2d 256, 269 (S.D.N.Y. 2001).
Plaintiff does state a claim for discrimination based on her disability. Her allegations that defendants mocked her perceived disability, punished her for taking medical leave, and refused to provide a reasonable accommodation relate distinctly to her alleged disability as opposed to retaliation for whistleblowing. Bones v. Prudential Fin., Inc., 54 A.D.3d 589; Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp. 2d at 269.
IV. CONCLUSION
For the above reasons, the court grants plaintiff's cross-motion to amend her complaint; grants defendants' motion to dismiss her Third Amended Complaint to the extent of dismissing her claims for discrimination on the basis of race and sex and for retaliation under the New York City and State Human Rights Laws; and otherwise denies defendants' motion. C.P.L.R. §§ 3025(b); 3211(a)(7). This decision constitutes the court's order.
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LUCY BILLINGS, J.S.C.