The following e-filed documents for Motion Sequences 01 and 02, listed by NYSCEF document numbers “16″, “17″, “22″, “26″, “27″, “28″, “30″, “35″, “45″, “47″, “50″, “51″, “32″ and attachments and. exhibits have been read on this motion: MOTION SEQUENCE 01 Notice of Motion and Affidavits/Affirmations X Memorandum of Law in Support X Affidavit in Opposition (Plaintiff) X Reply Affidavit/Affirmation X Memorandum of Law in Reply X MOTION SEQUENCE 02 Notice of Motion and Affidavits/Affirmations X Memorandum of Law in Support X Affidavit in Opposition X Reply Affidavit/Affirmation X Memorandum of Law in Reply X Defendants Nassau Boces, Nassau County Board of Cooperative Education Services, Valerie D’Aguanno and Selma Stoddard (collectively, “Boces”) move this Court for an order dismissing the plaintiff’s complaint pursuant to CPLR §3211(a)(2) and §3211(a)(7) for lack of subject matter jurisdiction and failure to state a cause of action (Motion Sequence 01). The plaintiff opposes the motion and Boces submits a reply. Defendant Nassau Boces Central Council of Teachers’ (the “Union”) also moves this Court for an order dismissing the plaintiff’s complaint pursuant to CPLR §3211(a)(2), §3211(a)(5), and §3211(a)(7) for lack of subject matter jurisdiction, expiration of the applicable statute of limitations, and failure to state a cause of action (Motion Sequence 02). The plaintiff opposes the motion and the Union submits a reply. The commenced the instant proceeding against the defendants1 by way of Verified Complaint alleging seven causes of action sounding in violations of the New York State Human Rights Law (“NYSHRL”) and N.Y. Exec. Law §296 for disability discrimination and age discrimination, constructive discharge, retaliation, misrepresentation, intentional infliction of emotional distress and negligent infliction of emotional distress. According to the Verified Complaint, the plaintiff began working for Boces as a teacher in 1978 and continued her employment for more than 28 years. The Verified Complaint further states that on March 16,202, New York Governor Andrew Cuomo declared a state of emergency due to the Covid-19 pandemic and ordered all schools to be closed and operate remotely. The plaintiff alleges that on or about August 8, 2020, Governor Cuomo permitted all New York schools to resume in-person instruction for the 2020/2021 school year with the proviso that all schools submit and adopt detailed reopening plans that were compliant with the New York State Department of Health guidelines. The plaintiff contends that on August 7, 2020, Boces’ Department of Human Resources issued a memorandum regarding Boces’ reopening and “delegated to [defendant] Selma Stoddard of the Human Resources Department the authority to take steps necessary to effectuate the resolution for those staff members who expressed concerns about returning in September.” The plaintiff claims that the memorandum also instructed those Boces employees with “one or more disabilities, who are requesting a reasonable workplace accommodation be made,” to submit medical documentation to substantiate the requested accommodation. The plaintiff alleges to have underlying medical conditions including a “surgical history of Nephrectomy, Chronic Kidney Disease Stage III, Diabetes II and Rheumatoid Arthritis.” The Verified Complaint alleges that the plaintiff’s doctors declared the plaintiff to be high risk for contracting Covid-19 as a result of her underlying health conditions. As such, the plaintiff allegedly contacted Boces multiple times by way of email and telephone calls to request an accommodation to work remotely for the 2020/2021 school year after receiving a memorandum from Boces’ directing personnel that accommodations could be requested. Plaintiff claims that Boces’ and Ms. Stoddards “verbal representations” misled the plaintiff to believe that a reasonable accommodation would be made upon the plaintiff’s submission of medical documentation demonstrating that the plaintiff had an ADA disability.” The Verified Complaint states that the defendants unjustifiably and arbitrarily denied the plaintiff’s request to work remotely for the 2020/2021 school year thereby constructively terminating the plaintiff by forcing her into early retirement. The plaintiff claims that the denial of her reasonable workplace accommodation was due to “discrimination, as several other staff members were granted the right to work remotely from home due to their underlying health conditions.” As a result of the denial, the plaintiff claims to have “sustained emotional distress, including mental anguish stress, and anxiety loss of income, lost back wages front wages and accrued pension benefits, pain and suffering and humiliation.” Motion Sequence 01 Boces argues that the Court lacks subject matter jurisdiction because the plaintiff filed the Notice of Claim more than three months from the accrual of her claim and, as such, the Verified Complaint should be dismissed as untimely. In the alternative, Boces also argues that the plaintiff’s Verified Complaint fails to sufficiently state a cause of action for constructive discharge, retaliation, negligence, negligent infliction of emotional distress, misrepresentation, age discrimination, and disability discrimination. With respect to the timeliness of the plaintiff’s Notice of Claim, “no action may be maintained against a school district unless a notice of claim was served within 90 days of the date on which the claim accrued” pursuant to Education Law §3813. (Angelo Capobianco, Inc. v. Brentwood Union Free Sch. Dist., 53 AD3d 634,635). “In general, the service of a timely notice of claim pursuant to Education Law §3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect.” (Matter of Baumann & Sons Buses, Inc. v. Ossining Union Free Sch. Dist., 121 AD3d 1110, 1111). The Court is not persuaded by Boces’ argument that the Court lacks subject matter jurisdiction. Boces acknowledges that the plaintiff’s claim began to accrue at the earliest on August 27, 2020, and at the latest on September 2, 2020. It is also undisputed that the plaintiff served a Notice of Claim upon Boces on January 14, 2021, which is more than ninety days from August 27, 2020 and September 2, 2020. (Angelo Capobianco, Inc., 53 AD3d at 635). However, on March 20, 2020, New York State Governor Cuomo issued Executive Order No. 202.8, which directed that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process…as proscribed by the procedural laws of the state…including but not limited to…the practice law and rule…is hereby tolled.” The toll was lifted November 3, 2020 pursuant to Executive Order No. 202.67. It has also been held that the subject executive orders constitute a toll of filing deadlines. (Brash v. Richards, 195 AD3d 582, 582). Since the plaintiff’s claim accrued during the period that tolled all new filings, the plaintiff had ninety days from November 3, 2020 to file a Notice of Claim, to wit, February 1, 2021. (Id.). Thus, the plaintiff’s Notice of Claim, filed on January 13, 2021, was timely and vests this Court with subject matter jurisdiction. As such, the Court turns its attention to whether the plaintiff’s Verified Complaint sufficiently pled the causes of action alleged therein. The undersigned’s inquiry is limited to addressing the adequacy of the plaintiff’s pleading, not the substantive merits of her causes of action. (Gruen, 187 AD2d at 560). Whether the allegations set forth in the Verified Complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately prevail on the claims, is not relevant for the pre-discovery motion to dismiss at bar. It is well established that with respect to a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7), the Court starts with the presumption that the allegations contained in the plaintiff’s pleadings are true. (Becker v. Schwartz, 46 NY2d 401, 408). A motion for failure to state a cause of action “will fail if from [the] complaint’s four corners, [its] factual allegations are discerned which taken together manifest any cause of action cognizable of law, regardless of whether the plaintiff will ultimately prevail on the merits.” (Gruen v. County of Suffolk, 187 AD2d 560). However, while the criteria in determining whether a complaint will withstand a motion pursuant to CPLR §3211(a)(7) is whether the pleadings state a cause of action discerned from the four corners of the pleadings, (Guggenheimer v. Ginsburg, 43 NY2d 268), the court is required to determine whether the proponent of the pleading has a cause of action, and not whether the proponent has merely stated a cause of action. (Meyer v. Guinta, 262 AD2d 463). The test to be applied is whether the complaint “gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, and whether the requisite elements of any cause of action known to our law can be discerned from its averments.” (Moore v. Johnson, 147 AD2d 621). Unless the defendant can demonstrate that there is no factual issue as claimed by the plaintiff, the motion to dismiss should be denied. (S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 A.D.3d 977, 979). Regarding the plaintiff’s cause of action for constructive discharge, Boces argues that the “fact that the plaintiff chose to resign while on FMLA leave after [the plaintiff] was denied her preferred accommodation” does not rise to the level of creating work conditions that were intolerable. To successfully plead a cause of action for constructive discharge, the plaintiff “must show that…her employer deliberately made working conditions so intolerable that…she was forced into involuntary resignation. The constructive discharge test is not met if the employee is simply dissatisfied with his job assignments.” (Zaborowski v. R.C. Diocese of Brooklyn, 195 AD3d 884, 885). The Verified Complaint alleges that Boces’ correspondence regarding the plaintiff’s request to work remotely was “noncooperative, argumentative and/or wholly unresponsive.” Additionally, the Verified Complaint asserts that the plaintiff’s work accommodation was “unjustifiably and arbitrarily denied, constructively terminating [the] Plaintiff by forcing her into involuntary retirement” fifteen months before she was entitled to a full pension without having “been afforded procedural safeguards and a right to be heard prior to termination.” The Verified Complaint further provides that the defendants’ conduct was “willful, outrageous, shocking and intolerable.” Based these allegations and the facts asserted, the requisite elements for constructive discharge are supported by the facts asserted. (Id.; Moore, 147 AD2d at 621). Similarly, the plaintiff sufficiently alleges facts to support a cause of action for retaliation despite Boces contention that there is no nexus between the denial of the plaintiff’s work accommodation and any alleged retaliation because the plaintiff was not employed by Boces at the time the Notice of Claim and Verified Complaint were filed. To successfully allege a claim for retaliation, a “plaintiff must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.” (Borawski v. Abulafia, 140 AD3d 817, 818). Here, the Verified Complaint states that the defendants “subjected the Plaintiff to severe harassment, wonton and unjustified neglect, [and] unreasonable expectations for job performance and other outrageous conduct” after learning that the plaintiff filed a formal age and disability complaint. Assuming the plaintiff’s allegations are true, the plaintiff adequately demonstrated that she engaged in a protected activity when she filed a discrimination complaint and Boces took an adverse action by subjecting the plaintiff unreasonable job expectations, which included in-person instruction, after learning about the plaintiff’s discrimination complaint. (Id.; Becker, 46 NY2d at 408). Assuming that the alleged unreasonable job performance occurred after the plaintiff filed the discrimination complaint, the complaint also alleges a causal connection between the filing of the discrimination complaint and adverse employment action. (Id). Regarding the plaintiff’s cause of action alleging negligence, Boces argues that the Verified Complaint lacks factual allegations that Boces owed the plaintiff a duty and that said duty was breached. A claim sounding in negligence must allege three essential elements: “(1) the existence of a duty on the defendant’s part as to the plaintiff, (2) a breach of this duty, and (3) a resulting injury to the plaintiff.” (Martinez v. Khaimov, 74 A.D.3d 1031, 1032). The Verified Complaint claims that the defendants “owed a duty to the plaintiff,” the defendants “breached this duty and either unreasonably endangered the physical safety of [the] Plaintiff or caused [the] Plaintiff to fear for her safety.” The plaintiff further alleges that as a “direct and proximate result” of the defendants’ negligence, the plaintiff “has suffered and continues to suffer substantial economic losses” as well as damage to her reputation, “severe and lasting embarrassment [and] emotional anguish.” As previously stated, the plaintiff merely needs to give Boces sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved.” (Moore, 147 AD2d at 621). Here, it can reasonably be discerned that the plaintiff claims Boces owed the plaintiff a duty to minimize her exposure to the Covid-19 virus, which was breached when the plaintiff’s request to work remotely was denied and, as a result of the breach, the plaintiff to sustained economic loss, lasting embarrassment and emotional anguish. (Id.; Martinez, 74 A.D.3d at 1032). Therefore, affording the plaintiff every reasonable inference, the facts support a cause of action sounding in negligence. However, the Court agrees with Boces’ argument that the Verified Complaint is “devoid of any allegations suggesting the type of deliberate and malicious campaign of harassment and intimidation required to establish such a claim.” “In order to state a cause of action to recover damages for intentional infliction of emotional distress, the complaint must allege conduct that was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency…and [was] utterly intolerable in a civilized community.” (Benjamin v. Assad, 186 AD3d 549, 550). Boces alleged refusal to grant the plaintiff’s request for an accommodation to work remotely for the 2020/2021 school year after allegedly allowing some of the plaintiff’s colleagues to work remotely does not meet the rigorous standard of going beyond all bounds of decency considering Boces allegedly offered the plaintiff the alternative of teaching remotely from Boces’ building. (Id.). Accordingly, the plaintiff’s claim for negligent infliction of emotional distress should be dismissed. As to the plaintiff’s cause of action for misrepresentation, Boces argues that there are no facts alleged demonstrating that it knowingly made false statements to the plaintiff with the intention to induce the plaintiff into an action. To state a cause of action alleging fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” (Berland v. Chi, 142 AD3d 1121, 1122). The plaintiff alleges that on August 7, 2020, Boces’ Human Resources. Department issued a memorandum, wherein Ms. Stoddard instructed staff members with one or more disabilities who were seeking a reasonable workplace accommodation to submit medical documentation. Moreover, the Verified Complaint provides that this representation was false and made for the purpose of deceiving the plaintiff into believing that the accommodation would be approved but was ultimately denied. Accepting the fact as stated to be true, the plaintiff’s reliance on Boces’ written and verbal false statements that a remote work accommodation would be approved caused her to resign her position and retire before full eligibility for a pension. (Becker, 46 NY2d at 408). Based upon these facts, the requisite elements of misrepresentation are alleged in the Verified Complaint. (Id.; Moore, 147 AD2d at 621). With respect to the plaintiff’s discrimination claims, Boces argues that the plaintiff fails to allege that Boces’ decision to deny the plaintiff’s workplace accommodation was based solely on the plaintiff’s age and disabilities. Moreover, Boces avers that the plaintiff’s allegations fall short of stating how the requested accommodation was reasonable and how the plaintiff’s colleagues who were granted an accommodation were similarly situated. The “NYSHRL prohibits discrimination in employment on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, marital status, or disability.” (Macchio v. Michaels Elec. Supply Corp., 149 A.D.3d 716, 718). “To establish a prima facie violation of this provision, a plaintiff has the burden of showing that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position at issue, (3) he or she was terminated from employment, and (4) the termination occurred under circumstances that give rise to an inference of discrimination.” (Id). The Verified Complaint has given Boces sufficient notice of the transactions and occurrences intended to be proved with respect to age and disability discrimination. (Moore at 621). In particular, the plaintiff was in a protected class for age and disability based upon the assertions that she was teaching for Boces for more than 28 years and suffered from a surgical history of Nephrectomy, Chronic Kidney Disease Stage III, Diabetes II and Rheumatoid Arthritis. Affording the plaintiff every reasonable inference, Boces was aware of the plaintiff’s conditions, denied her request to work remotely despite having granted the same accommodation to some of the plaintiff’s colleagues. Therefore, the facts alleged in the Verified Complaint are adequate to support a cause of action sounding in age and disability discrimination. (Macchio, 149 A.D.3d at 718). In light of the foregoing, Boces motion to dismiss should be denied as Boces did not demonstrate that the plaintiff failed to claim factual issues in support her causes of action, except for the plaintiff’s cause of action for negligent infliction of emotional distress. Motion Sequence 02 The Union argues that the plaintiff’s Verified Complaint should be dismissed because the Court lacks subject matter jurisdiction pursuant to Civil Service Law §205. In the alternative, the Union also argues that the plaintiff fails plead her causes of action as and against the Union. It is well settled that “Section 205 (subd 5, par [d]) of the Civil Service Law provides that the Public Employment Relations Board (PERB) has exclusive, nondelegable jurisdiction over any unfair labor practice as defined in section 209-a.” (Palumbo v. Bd. of Educ. of City of NY, 60 AD2d 858, 858). Moreover, the courts lack subject matter jurisdiction over such unfair labor practices until an alleged violation has been submitted to the PERB. (Id.). Neither the Verified Complaint nor the submissions before the Court demonstrate that the plaintiff’s claim against the Union was exhausted by PERB prior to seeking redress from this Court, which divests this Court is divested of subject matter jurisdiction with respect to the plaintiff’s claims against the Union. Therefore, the Verified Complaint should be dismissed as and against the Union. Based upon the foregoing, it is hereby ORDERED, that defendants Nassau Boces, Nassau County Board of Cooperative Education Services, Valerie D’Aguanno and Selma Stoddard’s motion (Motion Sequence 01) for an order dismissing the plaintiff’s Verified Complaint against them pursuant to CPLR §3211 is denied except that the plaintiff’s cause of action for negligent infliction of emotional distress is dismissed, and it is further ORDERED, that defendant Nassau Boces Central Council of Teachers’ motion (Motion Sequence 02) for an order dismissing the plaintiff’s Verified Complaint against it pursuant to CPLR §3211 is granted. The foregoing constitutes the Order of this Court. Dated: December 13, 2022
