R.R. Donnelley & Sons Company v. Marino

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

R.R. DONNELLEY & SONS COMPANY

and TUCKER PRINTERS, INC.,

Plaintiffs, DECISION AND ORDER

6:20-CV-06722 EAW

v.

GLENN MARINO, PATRICIA

GABORSKI and MERCURY PRINT

PRODUCTIONS, INC.,

Defendants.

INTRODUCTION

Plaintiffs R.R. Donnelley & Sons Company (“RRD”) and Tucker Printers, Inc.

(“Tucker”) (collectively “Plaintiffs”) commenced this action on September 16, 2020,

against defendants Glenn Marino (“Marino”), Patricia Gaborski (“Gaborski”), and

Mercury Print Productions, Inc. (“Mercury”) (collectively “Defendants”), arising from

Marino’s and Gaborski’s employment with Mercury after previously working at the Tucker

plant in Rochester, New York. On December 8, 2020, the Court granted Mercury’s motion

to dismiss all claims against it. (Dkt. 73). On December 21, 2020, Marino filed his answer

to the complaint (Dkt. 77),1 and on December 22, 2020, Gaborski filed her answer and

counterclaims asserted against Plaintiffs (Dkt. 78). Currently pending before the Court is

1   The parties have since stipulated to dismiss all claims against Marino with prejudice.

(Dkt. 89).

Plaintiffs’ motion to dismiss Gaborski’s counterclaims. (Dkt. 80). For the reasons set forth

below, the Court grants in part and denies in part Plaintiffs’ motion to dismiss.

FACTUAL BACKGROUND

The following facts are taken from Gaborski’s counterclaims and, as is required at

this stage of the proceedings, are presumed to be true.

Gaborski was hired by Tucker as a customer service representative in November of

2011. (Dkt. 78 at ¶ 185). On May 5, 2020, Tucker announced that it was closing its doors

during a plant-wide meeting, at which customized packets were distributed to employees

that detailed severance pay for eligible employees. (Id. at ¶¶ 188, 189, 190). According

to Gaborski’s “Separation Pay Plan Benefits Worksheet” that she was given at the meeting,

she was entitled to $6,346 in severance pay if she continued to work through July 31, 2020,

a commitment which was orally confirmed at the plant-wide meeting. (Id. at ¶¶ 191, 192).

Employees were encouraged to locate other employment and were told that RRD could

“work something out” for the provision of severance for employees who needed to leave

before July 31, 2020. (Id. at 193).

Because Tucker would be transitioning customer service and inventory to multiple

out-of-state RRD facilities, Tucker management encouraged Gaborski and other Tucker

employees to release and relocate inventory to local New York-based facilities, as directed

by the customers. (Id. at ¶¶ 194, 195, 197, 198).

On the same day that Tucker announced it was closing, Gaborski was informed that

RRD wanted to hire her to support Marino on its national sales team. (Id. at ¶ 203). But

after that day, RRD did not extend an offer of employment to her or continue to express an

interest in retaining her as an employee. (Id. at ¶ 204). As a result, Gaborski sought other

employment opportunities and accepted a position with Mercury on or about July 9, 2020.

(Id. at ¶ 205). On July 20, 2020, RRD emailed Gaborski about continuing her employment

with RRD, but she did not respond. (Id. at ¶ 206). On July 23, 2020, Gaborski was

informed that she was required to stay at Tucker until October 31, 2020 to maintain

eligibility for a severance package. (Id. at 207). On July 24, 2020, Gaborski informed

human resources that she had accepted outside employment and on July 27, 2020, four

days before her severance eligibility date, she was terminated from employment and not

provided severance. (Id. at ¶¶ 208, 209).

In her counterclaims, Gaborski asserts the following claims against Plaintiffs: (1)

breach of contract; (2) promissory estoppel; (3) unjust enrichment; (4) violation of Labor

Law §§ 190 et seq.; and (5) intentional infliction of emotional distress. On January 12,

2021, Plaintiffs filed the instant motion to dismiss Gaborski’s counterclaims pursuant to

Federal Rule of Civil Procedure 12(b)(6). (Dkt. 80). Gaborski filed her response in

opposition to the motion on July 9, 2021 (Dkt. 85), and Plaintiffs filed their reply on

February 19, 2021 (Dkt. 87).

For the reasons set forth below, Plaintiffs’ motion to dismiss is granted in part and

denied in part.

DISCUSSION

I. Legal Standard

“Courts evaluate a motion to dismiss a counterclaim under the same standard as a

motion to dismiss a claim in a complaint.” ADYB Engineered for Life, Inc. v. Edan Admin.

Servs. Ltd., No. 1:19-CV-7800-MKV, 2021 WL 1177532, at *19 (S.D.N.Y. Mar. 29,

2021). “In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542,

546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in

original) (internal quotations and citations omitted). “To state a plausible claim, the

complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the

speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)

(alteration in original) (quoting Twombly, 550 U.S. at 555).

II. Plaintiffs’ Motion to Dismiss

As noted, Plaintiffs move to dismiss Gaborski’s counterclaims for failure to state a

claim upon which relief may be granted pursuant to Rule 12(b)(6). As a threshold matter,

Plaintiffs contend that all of Gaborski’s claims relating to her receipt of severance are

governed and preempted by the Employment Retirement Income Security Act (“ERISA”),

29 U.S.C. § 1001 et seq., and/or otherwise subject to dismissal as a result of Gaborski’s

failure to exhaust administrative remedies in accordance with the terms of the severance

plan. Following a discussion of those contentions, the Court will address each

counterclaim separately.

A. ERISA Preemption and Exhaustion of Administrative Remedies

As noted, Plaintiffs argue that ERISA, which governs employee benefit plans and

employee welfare plans, including severance plans, preempts any state law claims

Gaborski asserts relating to her receipt of severance pay and further, that Gaborski did not

exhaust her administrative remedies by filing a proper claim for a benefit under the RRD

Separation Pay Plan (“SPP”).2 To this point, they argue that the SPP expressly provides

2   Plaintiffs have attached a full copy of the SPP to their motion papers. (Dkt. 80-2).

Because Gaborski attached papers referencing the SPP to her counterclaims, the Court has

considered Plaintiffs’ submission on this motion. See Chambers v. Time Warner, Inc., 282

F.3d 147, 153 (2d Cir. 2002) (in deciding motion under Rule 12(b)(6), the Court may

consider a document “where the complaint relies heavily upon its terms and effect, which

renders the document integral to the complaint” (quotations omitted)).

that a failure to properly file a written claim to the claims fiduciary “will be considered not

to have exhausted all administrative remedies under the Plan . . . [resulting in] her inability

to bring a legal action for that benefit.” (Dkt. 80-2 at 23). The Court finds these arguments

unable to be resolved at this stage of the proceedings.

ERISA was enacted because “Congress found it desirable that ‘disclosure be made

and safeguards be provided with respect to the establishment, operation, and administration

of [employee benefit] plans,’” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15 (1987)

(quoting 29 U.S.C. § 1001(a)), and to ensure “uniformity of regulation with respect to

[these plans’] activities,” id. (quoting H.R. Rep. No. 94-1785, p. 46 (1977)). “ERISA

‘supersede[s] any and all State laws insofar as they may now or hereafter relate to any

employee benefit plan.’” AA Med. P.C. v. Iron Workers Locs. 40, 361 & 417 Health Fund,

No. 2:20-CV-4333(DRH)(ST), 2021 WL 2895666, at *2 (E.D.N.Y. July 9, 2021) (quoting

29 U.S.C. § 1144(a)). In other words, if a state law claim comes within the scope of claims

governed by ERISA, the claim will be deemed preempted, notwithstanding how the claims

are characterized by the plaintiff. See also Aetna Health Inc. v. Davila, 542 U.S. 200, 209

(2004) (“[A]ny state-law cause of action that duplicates, supplements, or supplants the

ERISA civil enforcement remedy conflicts with clear congressional intent to make the

ERISA remedy exclusive, and is therefore pre-empted.”).

In addition, absent grounds for waiver, “[c]ourts uniformly require exhaustion for

claims based on violations of contractual rights protected by ERISA, such as denial of

benefits.” Shamoun v. Bd. of Trustees, 357 F. Supp. 2d 598, 602 n.3 (E.D.N.Y. 2005); see

also McQuillin v. Hartford Life & Accident Ins. Co., No. 20-CV-2353(JS)(ARL), 2021 WL

2102480, at *2 (E.D.N.Y. May 25, 2021) (“[P]laintiffs are not required to exhaust their

administrative remedies ‘where they make a clear and positive showing that pursuing

available administrative remedies would be futile, . . . [and may] assert equitable defenses

to the exhaustion requirement such as waiver, estoppel, and equitable tolling.’” (quoting

Kirkendall v. Halliburton, Inc., 707 F.3d 173, 179 (2d Cir. 2013)); Abe v. New York Univ.,

No. 14-CV-9323 (RJS), 2016 WL 1275661, at *5 (S.D.N.Y. Mar. 30, 2016) (“[I]t is true

that courts may waive the exhaustion requirement if a plaintiff “makes a clear and positive

showing that pursuing available administrative remedies would be futile” (quotation

omitted)).

Here, a threshold question that cannot be resolved on the present record is whether

Gaborski is even bound by the terms in RRD’s SPP. Gaborski alleges that she was

employed only by Tucker and was not subject to the requirements imposed on RRD

employees by the SPP. (See Dkt. 1 at ¶¶ 44, 47; Dkt. 78 at ¶¶ 185, 203; see also Dkt. 73

(“With respect to Gaborski, the allegations in the complaint establish that she was not an

employee of RRD. The complaint alleges that RRD extended Gaborski an offer of

employment on July 20, 2020, and she was terminated with cause on July 27, 2020, never

having ‘responded to RRD’s offer. . . .’”)). Plaintiffs contend that “[w]hether RRD

employed Gaborski is irrelevant to Gaborski’s Counterclaims, and the SPP Plan is not

limited to RRD employees.” (Dkt. 87 at 6). They argue that the SPP Plan defines “RR

Donnelley” as “R.R. Donnelley & Sons Company and its participating subsidiaries” and

that because Gaborski has admitted that RRD is the parent company of Tucker, the SPP

applies to her. But an underlying fact critical to Plaintiffs’ argument that is not capable of

resolution on the instant motion is whether Tucker was a participating subsidiary. Indeed,

in defining who is covered under the SPP, the SPP states: “Generally, you are covered

under the Plan if: You are employed by and considered by your employer to be an

‘employee’ of a participating employer (a complete list of participating employers may be

obtained upon written request to the Administrator),” (Dkt. 80-2 at 8), so it is not at all a

foregone conclusion that every subsidiary participated. While Plaintiffs invite the Court to

conclude that Tucker was a participating employer based on Gaborski’s receipt of the

“disclosure information pursuant to the Older Workers Benefit Protection Act” form which

specifically references the SPP (Dkt. 78-1 at 6), taking the facts and reasonable inferences

in the light most favorable to Gaborski, as the Court must, resolution of this issue in

Plaintiffs’ favor at this time would be inappropriate. Zuckerham v. GW Acquisition LLC,

No. 20-CV-8742 (VEC), 2021 WL 4267815, at *3 (S.D.N.Y. Sept. 20, 2021) (“When

considering a Rule 12(b)(6) motion to dismiss, the Court draws all reasonable inferences

in the light most favorable to the [non-moving party]”).

Accordingly, to the extent that Plaintiffs seek to dismiss Gaborski’s counterclaims

pursuant to ERISA and its requirements, the motion is denied. The Court now turns to

Gaborski’s counterclaims.

B. Breach of Contract

In this case, Gaborski argues that her breach of contract counterclaim arises from

the benefits worksheet she was given at the plant-wide meeting in tandem with the oral

representations made by Tucker representatives that she would receive the severance

outlined in the worksheet if she continued working for Tucker through July 31, 2020. She

further contends that she was told that RRD could “work something out” and provide

earlier severance for employees who had to leave before the July 31, 2020 separation date.

She contends that these representations as a whole constituted an enforceable contract to

provide the severance compensation outlined in the benefits worksheet and that Plaintiffs

breached the contract by terminating her employment four days before her separation date.

The parties apply New York law to their arguments regarding Gaborski’s breach of

contract counterclaim.3 “Under New York law, a breach of contract claim has four

elements: ‘(1) a contract; (2) performance of the contract by one party; (3) breach by the

other party; and (4) damages.’” Acquest Holdings, Inc. v. Travelers Cas. & Sur. Co. of

3   Despite language in the release annexed to Gaborski’s counterclaims indicating that

Illinois law is to be applied (Dkt. 78-1 at 4 (“This Release shall be construed in accordance

with the laws of the State of Illinois without regard to its principles of ‘Conflict of Laws.’”),

the parties have not addressed the issue of what state’s law applies and both sides appear

to assume that New York law is applicable. On this basis, the Court may apply New York

law on the instant motion. See Texaco A/S v. Com. Ins. Co., 160 F.3d 124, 128 (2d Cir.

1998) (“[W]here the parties have agreed to the application of the forum law, their consent

concludes the choice of law inquiry.”); The Chefs’ Warehouse, Inc. v. Emps. Ins. Co., No.

20 CIV. 4825 (KPF), 2021 WL 4198147, at *4 (S.D.N.Y. Sept. 15, 2021) (“Given the

parties’ assumption that New York law controls, ‘such implied consent is sufficient to

establish choice of law.’” (quoting Sasson v. Mann, No. 15 Civ. 6601 (CS), 2019 WL

3532155, at *5 (S.D.N.Y. Aug. 2, 2019)); Fleisig v. ED&F Man Cap. Markets, Inc., No.

19CV8217 (DLC), 2021 WL 2678675, at *8 (S.D.N.Y. June 30, 2021) (“The Customer

Agreement, by contrast, contains an Illinois choice of law provision and a mandatory forum

selection clause requiring that any litigation arising out of or related to the Customer

Agreement occur in Chicago, Illinois. The parties’ trial submissions, however, rely entirely

on New York law, and no party has argued that the forum selection clause of the Customer

Agreement requires litigation in Chicago. This Court will apply New York law.”); Nat’l

Union Fire Ins. Co. of Pittsburg v. Beelman Truck Co., 203 F. Supp. 3d 312, 317 (S.D.N.Y.

2016) (“The Court will apply New York law in this case because ‘[t]he parties’ briefs

assume that New York substantive law governs the issues . . . presented here, and such

implied consent is, of course, sufficient to establish the applicable choice of law.’” (quoting

Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 39 (2d Cir. 2009)).

Am., 217 F. Supp. 3d 678, 686 (W.D.N.Y. 2016) (quoting First Inv’rs Corp. v. Liberty Mut.

Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998)). A party may advance a breach of contract

claim without satisfying the particularity required by Rule 9(b) and “relatively simple

allegations will suffice to plead a breach of contract claim even post-Twombly and Iqbal.”

U.S. Bank Nat'l Ass'n v. Triaxx Asset Mgmt. LLC, No. 18-CV-4044 (BCM), 2021 WL

1227052, at *27 (S.D.N.Y. Mar. 31, 2021). In addition, an oral contact can be enforceable

under New York law contract principles. See Fetet v. Altice USA, Inc., No. 21CV1512

(DLC), 2021 WL 2941917, at *7 (S.D.N.Y. July 12, 2021) (“Under New York law, ‘a

binding contract can be formed without the execution of a written agreement.’” (quoting

Delaney v. Bank of Am. Corp., 766 F.3d 163, 171 (2d Cir. 2014)).

Plaintiffs contend that there is no enforceable written or oral contract between

Plaintiffs and Gaborski for the payment of severance and that even if there was, Gaborski

failed to satisfy the requisite conditions for receipt of a severance payment. Specifically,

they argue that in order to receive severance, Gaborski was required to be an eligible plan

participant, remain employed until the separation date, sign and return the release within

45 days, and not revoke her signature, and that Gaborski did not fulfill these terms clearly

set out in the SPP. (Dkt. 87 at 8). Of course, as noted above, the Court is unable to resolve

at this stage whether the requirements set out in the SPP applied to Gaborski. Further, she

argues that even if they did apply to her, Plaintiffs unjustly terminated her employment,

breaching their assurances to pay the severance amounts outlined in the worksheet if she

stayed through the end of July, in order to render her ineligible to receive the promised

severance. On the present record, the Court finds that Gaborski has plausibly alleged the

existence of a contract and that Plaintiffs breached it. Accordingly, the Court will allow

Gaborski’s breach of contract counterclaim to proceed.

C. Promissory Estoppel

Gaborski alleges that Plaintiffs’ agreement to pay severance amounted to a clear and

unambiguous promise to compensate her if she remained employed through July 31, 2020.

She contends that she reasonably relied on this promise by continuing to perform work for

Tucker in a stressful work environment and Plaintiffs failed to keep their promise when

they terminated her in advance of the separation date and refused to pay severance.

“A cause of action for promissory estoppel under New York law requires the

plaintiff to prove three elements: 1) a clear and unambiguous promise; 2) reasonable and

foreseeable reliance on that promise; and 3) injury to the relying party as a result of the

reliance.” Thompson v. Combined Sys., Inc., No. 6:17-CV-06007(MAT), 2017 WL

2546611, at *10 (W.D.N.Y. June 13, 2017) (quoting Kaye v. Grossman, 202 F.3d 611, 615

(2d Cir. 2000)); see also Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d

Cir. 1995) (“In New York, promissory estoppel has three elements: a clear and

unambiguous promise; a reasonable and foreseeable reliance by the party to whom the

promise is made; and an injury sustained by the party asserting the estoppel by reason of

the reliance.” (internal quotation marks omitted)). “A plaintiff may utilize the doctrine of

promissory estoppel in two situations: (1) to enforce a ‘promise in the absence of bargained

for consideration’; and (2) ‘to provide relief to a party where the contract is rendered

unenforceable by operation of the Statute of Frauds.’” Kant v. Columbia Univ., No. 08

Civ. 7476(PGG), 2010 WL 807442, at *4 (S.D.N.Y. Mar. 9, 2010) (quoting Merex A.G. v.

Fairchild Weston Sys., 29 F.3d 821, 824 (2d Cir. 1994)). A party may allege that an

enforceable contract exists and alternatively, plead a claim for promissory estoppel in

circumstances where it remains in dispute whether a valid contract exists. Goldberg v.

Pace Univ., No. 20 CIV. 3665 (PAE), 2021 WL 1565352, at *12 (S.D.N.Y. Apr. 21, 2021)

(citation omitted); M&B Properties 3 Bushey Lane VT, LLC v. CWCapital Asset Mgmt.

LLC, No. 2:18-CV-4187 PKC RER, 2019 WL 4805149, at *6 (E.D.N.Y. Sept. 30, 2019)

(Where “a breach of contract claim and a promissory estoppel claim are pled in the

alternative, if the court finds that a contract exists, the promissory estoppel claim must

fall.”) (quotation omitted)).

“[C]ourts in this Circuit disagree regarding the extent to which New York law

permits promissory estoppel claims in the employment context.” Shetel Indus. LLC v. Adin

Dental Implant Sys., Inc., No. 17-CV-2505(SJF)(ARL), 2021 WL 1108666, at *5

(E.D.N.Y. Mar. 23, 2021) (quoting Christian v. TransPerfect Glob., Inc., No. 17-cv-5554,

2018 WL 4571674, at *8 (S.D.N.Y. Sept. 24, 2018) (citing cases)). While some courts

have barred such claims entirely, see Blodgett v. Siemens Indus., Inc., 13 cv 3194

(JMA)(AKT), 2018 WL 385477, at *5 (E.D.N.Y. Jan. 11, 2018) (holding that New York

law does not recognize promissory estoppel in the employment context), to the extent that

such claims have been permitted to go forward in the employment context, a party must

allege a promise that is separate from an employment relationship, Shetel, 2021 WL

1108666, at *5.

Here, Gaborski has not alleged any promises made by Plaintiffs that are separate

from the employment relationship, and her claim for promissory estoppel fails. See id. at

*6; Roelcke v. Zip Aviation, LCC, No. 15 CIV. 6284 (DAB), 2018 WL 1792374, at *12

(S.D.N.Y. Mar. 26, 2018) (dismissing promissory estoppel claim “as there is no promise

that arises separate from Plaintiff’s alleged employment relationship with Defendants”);

Zakrzewski v. Luxoft USA, Inc., 151 A.D.3d 573, 574 (1st Dep’t 2017) (dismissing

promissory estoppel claim arising from failure to pay severance where plaintiff did not

allege a duty independent of the employment relationship). Accordingly, Plaintiffs’ motion

to dismiss Gaborski’s counterclaim for promissory estoppel is granted and that

counterclaim is dismissed.

D. Unjust Enrichment

Gaborski’s counterclaim for unjust enrichment alleges that she performed services

for Plaintiffs, including by providing skillful assistance during the transition period, and

did so with the understanding that she would receive severance pay if she worked until July

31, 2020. She contends that Plaintiffs used and benefitted from her services and by

terminating her prior to her separation date in order to avoid paying severance, retained

those severance funds for themselves.

An unjust enrichment claim under New York law requires that a plaintiff show that

the defendant was enriched at the plaintiff’s expense and “it is against equity and good

conscience to permit defendant to retain what is sought to be recovered.” BanxCorp v.

Costco Wholesale Corp., 723 F. Supp. 2d 596, 618 (S.D.N.Y. 2010) (quoting Am. Med. &

Life Ins. Co. v. Crossummit Enters., Inc., 27 Misc. 3d 1210(A), 2010 WL 1493136, at *5

(N.Y. Sup. Ct. 2010)). An unjust enrichment claim “is available ‘only in unusual situations

when, though the defendant has not breached a contract nor committed a recognized tort,

circumstances create an equitable obligation running from the defendant to the plaintiff.’”

Amable v. New Sch., No. 20-CV-3811 (KMK), 2021 WL 3173739, at *12 (S.D.N.Y. July

27, 2021) (quoting Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012)). “Under

New York law, ‘[a]n unjust enrichment claim is not available where it simply duplicates,

or replaces, a conventional contract or tort claim.’” Fetet v. Altice USA, Inc., No.

21CV1512 (DLC), 2021 WL 2941917, at *7 (S.D.N.Y. July 12, 2021) (quoting Corsello,

18 N.Y.3d at 790-91); see also Trustpilot Damages LLC v. Trustpilot, Inc., No. 21-CV-432

(JSR), 2021 WL 2667029, at *9 (S.D.N.Y. June 29, 2021) (“However, a plaintiff cannot

maintain an unjust enrichment claim when there is a ‘valid and enforceable contract

between the parties covering the dispute at issue.’” (quoting AHA Sales, Inc. v. Creative

Bath Prods., Inc., 58 A.D.3d 6, 20 (2d Dep’t 2008))).

But a party may plead an unjust enrichment claim in the alternative to its breach of

contract claim where there is a “bona fide dispute over the existence of the contract.”

Flatscher v. Manhattan Sch. of Music, No. 20 CIV. 4496 (KPF), 2021 WL 3077500, at *9

(S.D.N.Y. July 20, 2021) (citation omitted); cf. In re Columbia Tuition Refund Action, No.

20-CV-3208 (JMF), 2021 WL 790638, at *9 (S.D.N.Y. Feb. 26, 2021) (“[C]ourts in this

District have previously dismissed unjust enrichment claims that were indistinguishable

from contract claims pleaded in the alternative in the same complaint, at least where the

parties did not dispute that they shared a contractual relationship.”) (collecting cases).

In this instance, as set forth above, there is a bona fide dispute between the parties

as to the existence of a valid contract between them for the payment of severance. Plaintiffs

do not concede the existence of an enforceable contract upon which Gaborski’s

counterclaims are based, and Gaborski has plausibly pled a claim for unjust enrichment in

the alternative to her contract claim. Consequently, Gaborski’s unjust enrichment

counterclaim may proceed to discovery and Plaintiffs’ motion to dismiss this counterclaim

is denied.

E. New York Labor Law

On this counterclaim, Gaborski argues that she was legally entitled to additional

wages of $6,346.14 as severance and that she is entitled to that amount, plus interest,

liquidated damages and attorneys’ fees pursuant to Labor Law §§ 190 et seq.

Labor Law § 190 defines “wages” as “the earnings of an employee for labor or

services rendered, regardless of whether the amount of earnings is determined on a time,

piece, commission or other basis.” N.Y. Lab. Law § 190. In moving to dismiss Gaborski’s

Labor Law counterclaim, Plaintiffs argue only that the claim is subject to dismissal because

Gaborski failed to timely sign the release and did not experience a qualified separation as

required by the SPP. But as set forth above, the Court is unable to resolve at this stage of

the proceedings whether the terms of the SPP preclude Gaborski’s receipt of severance.

Accordingly, Plaintiffs’ motion to dismiss this counterclaim resting on these same

arguments is similarly denied at this time.

F. Intentional Infliction of Emotional Distress

Gaborski’s fifth counterclaim is for intentional infliction of emotional distress.

(Dkt. 1 at 27). “The New York state law tort of intentional infliction of emotional distress

‘has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe

emotional distress, (3) a causal connection between the conduct and the injury, and (4)

severe emotional distress.’ . . . Furthermore, ‘New York sets a high threshold for conduct

that is “extreme and outrageous” enough to constitute intentional infliction of emotional

distress.’” A.M. ex rel. J.M. v. NYC Dep’t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y.

2012) (quoting Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996)), aff’d sub

nom., 513 F. App’x 95 (2d Cir. 2013). The conduct at issue must be “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a civilized society.” Stuto v.

Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell v. New York Post Co., 81

N.Y.2d 115, 122 (1993)).

Gaborski argues that Plaintiffs’ actions of closing the Tucker plant without notice

during a worldwide pandemic, unfairly extending her separation date upon learning she

had obtained other employment, terminating her four days before she was due to receive

severance, and filing this lawsuit against her can support her counterclaim for intentional

infliction of emotional distress. The Court disagrees. While the facts alleged by Gaborski

in her counterclaim may be unfortunate, they do not rise anywhere near the level of conduct

so outrageous and extreme to sustain this claim, particularly in the employment context.

See Cummings v. City of New York, No. 19-CV-7723 (CM)(OTW), 2021 WL 1163654, at

*10 (S.D.N.Y. Mar. 26, 2021) (“New York courts are exceedingly wary of claims for

intentional infliction of emotional distress in the employment context . . .” (quotation

omitted), reconsideration denied, No. 19-CV-7723 (CM)(OTW), 2021 WL 1664421

(S.D.N.Y. Apr. 28, 2021)); Brown v. Montefiore Med. Ctr., No. 19 CV 11474 (ALC), 2021

WL 1163797, at *11 (S.D.N.Y. Mar. 25, 2021) (“In the rare instances where the New York

courts have found the complaint sufficient to state a claim for intentional infliction of

emotional distress in the employment context, the claims have been accompanied by

allegations of sex discrimination, and more significantly, battery.” (quoting Gerzog v.

London Fog Corp., 907 F. Supp. 590, 604 (E.D.N.Y. 1995)); see also Nwagboli v.

Teamwork Transp. Corp., No. 08 Civ. 4562(JGK)(KNF), 2009 WL 4797777, at *5

(S.D.N.Y. Dec. 7, 2009) (“The facts present a routine contract dispute, where one

contracting party breached the agreement intentionally. Without more, this conduct cannot

be deemed ‘truly egregious.’”).

Accordingly, because Gaborski has failed to adequately allege a claim for

intentional infliction of emotional distress, Plaintiffs’ motion to dismiss this counterclaim

is granted.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to dismiss Gaborski’s counterclaims is

denied as to the counterclaims for breach of contract, unjust enrichment, and violation of

Labor Law §§ 190 et seq., but granted as to the second counterclaim for promissory

estoppel and fifth counterclaim for intentional infliction of emotional distress and those

counterclaims are dismissed without prejudice, see Ronzani v. Sanofi S.A., 899 F.2d 195,

198 (2d Cir. 1990) (typical practice at motion to dismiss stage is to dismiss claims without

prejudice).

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: September 28, 2021

Rochester, New York