Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendants, dated February 11, 2020 and supporting papers; (2) Memorandum of Law In Opposition by plaintiff, dated April 17, 2020; and (3) Reply by defendants, dated April 30, 2020 it is1 ORDERED that defendants’ motion to dismiss the second cause of action of the complaint herein is DENIED. This action arises out of an alleged breach of an employment agreement. Joseph F. Lauto (JFL) was employed by defendant Michbi Doors, Inc. (Michbi) from May 2008 to February 2, 2019. On January 8, 2013, defendant Michele Bianculli executed an employment agreement with JFL on behalf of Michbi in which it was agreed, inter alia, that Michbi would pay the premiums for health and dental insurance coverage for JFL and his wife for the term of the contract, which was for a six-year period beginning January 8, 2013. From January 8, 2013 until September 29, 2014, Michbi paid the health insurance premiums for JFL and his family as called for by the agreement. On September 30, 2014, despite acknowledging its continuing duty to pay the premiums for health and dental insurance coverage for JFL and his wife, Michbi began withdrawing funds from JFL’s weekly salary to cover the premiums for health and dental insurance, and it continued to do so until November 4, 2014, when JFL determined that Michbi had no intention of honoring its agreement to pay the premiums and its further promise to repay all amounts so deducted from his salary, JFL enrolled in Medicare. JFL died in early 2019. On December 18, 2019, plaintiff, the Executor of JFL’s estate, commenced the current action, asserting two causes of action. The first cause of action alleges a claim for breach of contract against Michbi; the second cause of action, which is asserted against both defendants, alleges that the deduction of healthcare insurance premiums from JFL’s weekly salary contrary to the terms of JFL’s contract with Michbi violated New York Labor Law’ 193, and that pursuant to BCL §630(a), the defendants are jointly and severally liable for, among other things, the contra-contractual deductions and an equivalent amount in liquidated damages. Defendants now move to dismiss2 the second cause of action on the ground that it is preempted by Section 514[a] of Title I of the Employee Retirement Income Security Act, 29 USC §1001, et seq. (ERISA). In support of their motion, defendants proffer, inter alia, the summons and verified complaint and two Opinion Letters from the Wage and Hour Division of the U.S. Department of Labor dated, respectively, July 14, 1994 and February 8, 2008. They contend that the propriety, vel non, of an employer’s process for collecting health insurance premiums is governed exclusively by EISA and that, therefore, plaintiff’s second cause of action is preempted. In opposition, plaintiff argues that his Labor Law §193 cause of action stems from the terms of his January 8, 2013 contract and does not, as such, implicate, affect or otherwise relate to an EISA plan. Preemption of state law by federal law will not lightly be assumed, for, as the Court of Appeals has written, Athere is a presumption that Congress does not intend to supplant State law, and a claim traditionally within the domain of State law will not be superseded by Federal law “unless that was the clear and manifest purpose of Congress” (Nealy v. U.S. Healthcare HMO, 93 NY2d 209, 217 [1999], quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 US 645, 654-655 [1995]). Section 514[a] of EISA provides that EISA “shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in §1003[a] of this title and not excepted under §1003[b]” (29 USCA §1144). “ [A] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan” (Fort Halifax Packing Co., Inc. v. Coyne, 482 US 1, 8 [1987], quoting Shaw v. Delta Airlines, Inc., 463 US 85, 96-97 [1983]). An action is not preempted where the action’s outcome will not affect the terms of an EISA plan (see Nealy v. U.S. Healthcare HMO, 93 NY2d 209, 689 NYS2d 406 [1999]; see e.g. Oxford Health Plans (NY), Inc. v. Better Care Health Care Pain Mgt. & Rehab, 305 AD2d 223, 762 NYS2d 344 [1st Dept 2003], citing Danca v. Private Health Care Sys., 185 F3d 1, 5 [1st Cir.1999]; Tufino v. New York Hotel and Motel Trades Council and Hotel Associations of the New York City AFL-CIO Local 6, 223 AD2d 245, 646 NYS2d 799 [1st Dept 1996]). Although ERISA’s preemption provisions are “expansive” (Arditi v. Lighthouse Int’l, 676 F.3d 294, 299 [2d Cir. 2012] (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 [2004]), they are not without limit. Thus, in Abernethy v. EmblemHealth, Inc., 790 Fed Appx 250 [2d Cir 2019][summary order], the Second Circuit Court of Appeals held that the plaintiffs, retired officers of the defendants, who contended that they were entitled under their separation agreements with the defendants to the same health insurance plan benefits as the defendants’ active officers and that those benefits could not be unilaterally changed by the defendants, were not precluded by ERISA from prosecuting their state-law contract claims: Under the Supreme Court’s two-part test as set forth in Davila, ERISA preempts a cause of action if (1) “an individual, at some point in time, could have brought his claim under ERISA §502(a)(1)(B);” and (2) “no other independent legal duty…is implicated by a defendant’s actions.” Davila, 542 U.S. at 210, 124 S.Ct. 2488; see also Arditi, 676 F.3d at 299. Here, the contractual claims are not preempted because they derive from an independent legal duty — a contractual right to parity with EmblemHealth’s active officers — as opposed to a particular benefit plan. (Abernethy v. EmblemHealth, Inc., supra, 790 Fed Appx at 255.) Noting that, as in Stevenson v. Bank of New York Co., 609 F.3d 56 [2d Cir. 2010], the Abernathy plaintiffs’ “claims derive[d] from a separate promise to confer a benefit to which they were not otherwise entitled” (id.), the federal Court of Appeals held that the District Court, in dismissing the Abernathy plaintiffs’ claims as preempted, had incorrectly reasoned that “the parties’ obligations under the Plan are ‘inextricably intertwined with the interpretation of Plan coverage and benefits.’ “…(quoting Arditi, 676 F.3d at 299). As discussed above, the contractual claims are not grounded upon “obligations under the Plan”; they are instead derived from a separate promise in the employment and separation agreements. Accordingly, “[w]hatever rights [the Abernathy plaintiffs'] had arose not from the [benefit] plan, but from the independent agreement[s] that gave [them] benefits even though [they] had no right to them under the plan.” (Id. at 256, quoting Arditi v. Lighthouse Int’l, supra, 676 F.3d at 300.) Accordingly, the Court of Appeals, although affirming the District Court’s dismissal of the Abernathy plaintiffs’ ERISA and breach of fiduciary duty claims — because those plaintiffs had “identified no language in the employment agreements, separation agreements, or applicable SPDs that is reasonably capable of being interpreted as promising vested benefits” (id., 790 Fed Appx at 255) — it disagreed with the District Court’s determination that their contractual claims were preempted by ERISA3. Here, defendants point to no provision of ERISA that prohibits an employer from contractually undertaking to pay all of an employee’s health insurance costs or that precludes the contracting employee — or his estate — from bringing suit against an employer to enforce that obligation or to recover damages for the employer’s breach of its undertaking. No less important, there is no suggestion here by the defendants that “‘the actual claim that the plaintiff asserts can be construed as a colorable claim for benefits pursuant to §502(a)(1)(B)’” of ERISA (Barton v. Martha Stewart Living Omnimedia, Inc., 54 Employee Benefits Cas 2090 [SDNY Sept. 17, 2012], quoting Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 328 [2d Cir.2011]; see Aetna Health Inc. v. Davila, supra, 542 U.S. at 210). Nor can it be said, without more, that the making or enforcement of such an undertaking affects the terms or administration of Michbi’s health care plan. Thus, the defendants’ reliance upon the July 14, 1994 and February 8, 2008 opinion letters is misplaced, as is their assertion that plaintiff’s decedent’s remedy for defendants’ breach of their agreement was to “stop participating in the insurance plans or make a claim under the insurance plan’s dispute resolution procedures to recover the premiums.” Plaintiff’s dispute is not with the health insurance plan; it is with defendants, who, he claims, breached their agreement to pay for health insurance coverage for plaintiff’s decedent and for plaintiff’s decedent’s wife, as a consequence of which, plaintiff claims, the decedent was forced to bear those costs himself, including, ultimately, the cost of participating in Medicare. Thus, as in Abernethy v. EmblemHealth, Inc., supra, plaintiff’s claims here “are not grounded upon ‘obligations under the Plan’; they are instead derived from a separate promise in the employment…agreement[]. Accordingly, ‘[w]hatever rights [plaintiff's decedent] had arose not from the [benefit] plan, but from the independent agreement[] that gave [him] benefits’” — that is, fully employer-paid health insurance coverage for himself and his wife — “‘even though [he] had no right to them under the plan’” (790 Fed Appx at 256, quoting Arditi v. Lighthouse Int’l, supra, 676 F.3d at 300). Plaintiff’s invocation of Labor Law §193 to augment the enforcement of that contractual right cannot be said to trench upon any interest within the preemptive ambit of ERISA. The court has considered the remaining contentions of the parties and finds that they do not require further discussion. Accordingly, and for all of the foregoing reasons, the defendants’ motion is denied. The foregoing constitutes the decision and order of the court. The foregoing constitutes the decision and order of the court. __FINAL DISPOSITION__ XX __NON-FINAL DISPOSITION Dated: November 17, 2020
