Defendant is plaintiff’s former employee. At the time of defendant’s employment, plaintiff had a maternity leave policy of ninety (90) days. Defendant took maternity leave for 120 days. Defendant did not return to work after maternity leave. Plaintiff commenced this action seeking monetary damages arising from health insurance premium payments plaintiff made on defendant’s behalf while defendant was on maternity leave beyond ninety (90) days. Defendant now moves for dismissal pursuant to CPLR §3211(a)(7) on the grounds that the federal regulation (29 C.F.R. §825.213 of the Family Medical Leave Act) through which plaintiff seeks relief is inapplicable to the case at bar, thus plaintiff failed to state a claim. Alternatively, defendant moves for summary judgment pursuant to CPLR §3212 on the grounds that there are no triable issues of fact. After careful review of the papers submitted, the motion is denied. When considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR §3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v. Martinez, 84 NY2d 83 [1994]). A movant seeking summary judgment in its favor “must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The evidentiary proof tendered must be in admissible form. (See Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557[1980]). As a preliminary matter, it is undisputed that 29 C.F.R. §825.213 is inapplicable to the case at bar. Here, plaintiff maintains that defendant entered an agreement for plaintiff to extend maternity leave beyond the FMLA leave period and in return defendant would return to work. During the period of extended leave, defendant received a salary and health coverage. Despite receiving the aforementioned benefits, defendant did not return to work in breach of the agreement between the parties. Upon acceptance of the facts as alleged by plaintiff to be true, the court determines that the facts as alleged fit within a legally cognizable theory namely, breach of contract, promissory estoppel, or unjust enrichment thus defendant’s motion to dismiss is denied. Likewise, defendant’s motion for summary judgment is also denied. Defendant asserts that pursuant to her employment agreement she was an at will employee and that plaintiff failed to establish that there was a subsequent contract between the parties such that relief can be granted. In opposition, plaintiff cites the leave policy and various documents signed by defendant indicating that plaintiff initially offered only ninety (90) days leave. Plaintiff avers that the parties eventually negotiated 120 days leave and defendant agreed to return to work. Ultimately, the nature of a summary judgment motion is to ascertain whether triable issues of fact exist. Under the facts and circumstance present here, whether or not there was an agreement between the parties for defendant to return to work in exchange for extended leave is an issue of fact appropriate for trial thus, defendant’s motion for summary judgment is denied. In light of the foregoing, it is hereby ORDERED that the defendant’s motion for summary judgment and dismissal is denied in its entirety; and it is further ORDERED that all parties are to appear for trial on April 27, 2022 at 9:30AM, Small Claims Part, 89-17 Sutphin Boulevard, Jamaica New York. This constitutes the decision and order of the Court. Dated: April 6, 2022
