[*1]
Tardone v Gabryszak
2015 NY Slip Op 52041(U) [57 Misc 3d 1206(A)]
Decided on October 28, 2015
Supreme Court, Erie County
Troutman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 28, 2015
Supreme Court, Erie County


Trina Tardone, Plaintiff,

against

Dennis Gabryszak, ADAM LOCHER, SHELDON SILVER, NEW YORK STATE ASSEMBLY, and STATE OF NEW YORK, Defendants.




813123/2014
Shirley Troutman, J.

Defendants, Dennis Gabryszak, by his attorney, CONNORS & VILARDO, LLP, Terrence M. Connors, Esq., of counsel, Sheldon Silver, by his attorney, HOGAN LOVELLS US LLP, Kenneth Kirschner, Esq. and Vi T. Vu, Esq., of counsel, and New York State Assembly and State of New York, by their attorney, ERIC T. SCHNEIDERMAN, New York State Attorney General, Kathleen M. Kaczor, Esq., of counsel move for an order dismissing the Complaint on the



ground that all claims are untimely or, in the alternative, on the ground that Plaintiff has failed to state a cause of action against them. Defendants, New York [*2]State Assembly and State of New York, also allege that this court lacks jurisdiction over Plaintiff's claims against them with the exception of claims pursuant to Executive Law §296 because the New York State Court of Claims



has exclusive jurisdiction for said claims. However, these Defendants allege that Plaintiff has previously brought a duplicate action for the same relief in the Court of Claims such that this filing violates CPLR §3211(a)(4) and ask that her Executive Law claims be dismissed on this basis, as well.

Plaintiff, Trina Tardone, by her attorney, JOHN P. BARTOLOMEI & ASSOCIATES, John P. Bartolomei, Esq., of counsel, opposes, asserting that her causes of action arise out of the Defendants' violations of the terms of her employment contract and that her claims are, therefore, not time-barred, citing Brick v. Cohn-Hall-Marx, Co., 276 NY 259 (1937). In the alternative she asks



for leave to amend her complaint in compliance with CPLR §3014. She also opposes the defense claim that she has failed to state a cause of action for sexual discrimination, alleging that she has shown sufficient facts to state this cause of action.

Defendants reply that the underlying nature of Plaintiff's causes of action dictates the statute of limitations that applies to each and that Plaintiff cannot be permitted to extend the statute of limitations of her various claims by characterizing them as a breach of contract. They cite Brick, supra and Tighe v. Ginsberg, 146 AD2d 268 (4th Dept., 1989). They also assert that, in addition, she has failed to state a claim for breach of contract. There was never a written contract and her reliance on the employee handbook is misplaces because such handbooks do not constitute contracts in New York, citing Rich v. Coopervision, Inc., 198 AD2d 860 (4th Dept., 1993). Finally, they allege that she has abandoned most of her claims or conceded the Defendants' positions on the remaining



causes of action by not opposing them and as to the one she did oppose, she has failed to state a cause of action because her alleged facts are insufficient to give rise to a cause of action for sexual discrimination.

The legal arguments submitted by the parties were read and considered by the court but are not included in the official record of this case. The court finds that the Court of Claims has jurisdiction over the claims brought by Plaintiff against the State and the Assembly with the exception of those pursuant to the Executive Law, and as to those, the Plaintiff has filed a duplicate action in that court. Therefore, all of Plaintiff's claims against the New York State Assembly and the State of New York are dismissed for either lack of jurisdiction or duplication of filing, as the case may be.

Defendants, Silver and Gabryszak's, motions are addressed next.

The court finds that Plaintiff left her employment in January of 2011 and commenced this action in November of 2014, more than 3 years after all of the causes of action set forth in her Complaint would have accrued, except for breach of contract. The court finds that the Plaintiff was an at-will employee and was



not employed pursuant to a contract, express or implied. Therefore, she has



failed to sate a cause of action with respect to her Twelfth cause of action for breach of contract. This court has determined that Plaintiff is not able to extend the time in which to bring this action by alleging that her claims sound in contract, in any event. Consequently, all of Plaintiff's claims against Dennis Gabryszak and Sheldon Silver are dismissed as time-barred. This court does not need to reach Defendants' other arguments.

Although Defendant, Adam Locher, has not brought a motion to dismiss, this court exercises its discretion in light of the facts and the law to dismiss all of Plaintiff's claims against him, as well.

ACCORDINGLY, Defendants' motions to dismiss are granted, the complaint against Defendant Adam Locher is dismissed, and Plaintiff's motion for leave to amend her complaint is denied.

THIS CONSTITUTES THE ORDER OF THE COURT.



SHIRLEY TROUTMAN, JSC



Buffalo, New York



Papers Considered:



1. Amended Complaint, verified June 4, 2015.



2. Affidavit of Kathleen M. Kaczor, Esq., sworn to June 17, 2015 andexhibits.



3. Affidavit of Terrence M. Connors, Esq., sworn to June 24, 2015 andexhibits.



4. Affirmation of Kenneth Kirschner, Esq., dated June 24, 2015 and[*3]exhibits.



5. Affirmation of John P. Bartolomei, Esq., dated ________ and filedSeptember 29, 2015.



6. Affidavit of Kathleen M. Kaczor, Esq., sworn to October 21, 2015.