Costa v. Astoria Federal Savings and Loan Association et al

Filing 19

MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED that the 12 motion by the Defendants to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) is granted with prejudice and the Plaintiffs Complaint is dismissed in its entirety because (1) the ERISA claims are time-barred and (2) the Plaintiffs remaining state law claims are preempted by ERISA; and it is further ORDERED that the Clerk of the Court is directed to close this case. So Ordered by Judge Arthur D. Spatt on 2/4/14. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
MARIE C. COSTA, a/k/a CONNIE MARIE
COSTA,
Plaintiff,

MEMORANDUM OF
DECISION AND ORDER
13-CV-1609 (ADS) (ARL)

v.

ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION and TRUSTEES OF THE
ASTORIA SAVINGS AND LOAN ASSOCIATION
EMPLOYEES’ PENSION PLAN,
Defendants.
-----------------------------------------------------------X
APPEARANCES:
Gary Schoer, Esq.
Attorney for the Plaintiff
6800 Jericho Turnpike. Suite 108W
Syosset, NY 11791
Jackson Lewis, PC
Attorneys for the Defendants
58 South Service Road, Suite 410
Melville, NY 11747
By: Adam Granek Guttell, Esq.
Mark S. Mancher, Esq., of Counsel
SPATT, District Judge.
On March 26, 2013, the Plaintiff Marie C. Costa, also known as Connie Marie
Costa (the “Plaintiff”) commenced this action under the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., against the Defendants Astoria
Federal Savings and Loan Association (“Astoria”) and Trustees of the Astoria Savings
and Loan Association Employees’ Pension Plan (the “Trustees” and collectively, the
“Defendants”). The Plaintiff accuses the Defendants of wrongly denying her pension

1

benefits under the terms of Astoria’s Employees’ Pension Plan (the “Plan”), which was
an employee welfare benefits plan funded by Astoria, the Plaintiff’s former employer.
In this regard, the Plaintiff asserts (1) that the Defendants wrongfully and unfairly
denied her the pension benefits to which she is allegedly entitled by law and pursuant to
the Plan, in violation of 29 U.S.C. § 1132(a)(1)(B); (2) that she is entitled to a declaratory
judgment concerning her rights to future benefits due under the Plan pursuant to 29 U.S.C.
§ 1132(a)(1)(B); (3) that the Defendants breached their fiduciary duty in violation of 29
U.S.C. §§ 1132(a)(1) and (2); and (4) that she is entitled to recover her reasonable
attorney’s fees and costs incurred in bringing this action and enforcing her alleged rights
under the Plan pursuant to 29 U.S.C. § 1132(g)(1).
Further, in addition to her four ERISA claims, the Plaintiff alleges five state law
causes of action as follows: (1) breach of contract; (2) breach of common law fiduciary
duty; (3) fraud; (4) violation of New York General Business Law (“NYGBL”) § 349; and
(5) negligence.
Presently before the Court is a Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
12(b)(6) motion by the Defendants to dismiss the Plaintiff’s Complaint in its entirety.
For the reasons that follow, the Court grants the Defendants’ motion.
I. BACKGROUND
A. Rule 12(b) Standard for Considering Factual Allegations and Evidence Outside
the Complaint
Before reciting the underlying factual allegations of this case, the Court notes, as
an initial matter, that evidence outside of the Complaint may not be considered by the
Court when deciding a motion to dismiss brought pursuant to Fed. R. Civ. P.
12(b)(6).See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010)

2

(“In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6), the duty of a court is merely
to assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.”) (citation and internal question marks
omitted); Hahn v. Rocky Mt. Express Corp., No. 11 Civ. 8512(LTS) (GWG), 2012 WL
2930220, at *2 (S.D.N.Y. June 16, 2012) (“When deciding a motion to dismiss . . .
[e]vidence outside [the complaint] . . . cannot [ ] be considered on review of a 12(b)(6)
motion.”) (citation and internal quotation marks and alterations omitted). In this regard,
pursuant to Fed. R. Civ. P. 12(d), where matters outside the complaint are presented in
connection with a Rule 12(b)(6) motion, “a district court must either ‘exclude the
additional material and decide the motion on the complaint alone’ or ‘convert the motion
to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the
opportunity to present supporting material.’” Friedl v. City of New York, 210 F.3d 79, 83
(2d Cir. 2000) (quoting Fonte v. Bd. of Managers of Continental Towers Condo., 848
F.2d 24, 25 (2d Cir. 1988)).
In this case, the Court declines to convert the Plaintiff’s motion for dismiss to one
for summary judgment. Thus, while the Plaintiff in her opposition asserts additional
factual allegations not included in her Complaint, these new factual allegations are
inappropriate for consideration by this Court. See, e.g., Universal Trading & Inv. Co.,
Inc. v. Tymoshenko, No. 11 Civ. 7877(PAC), 2012 WL 6186471, at *1 (S.D.N.Y. Dec.
12, 2012) (“‘[N]ew facts and allegations, first raised in a Plaintiff’s opposition papers,
may not be considered’ in deciding a motion to dismiss.”) (quoting Simone v. U.S., No.
09–CV–3904 (TCP)(AKT), 2012 WL 4891617, at *6 (E.D.N.Y. Oct. 9, 2012)).
Nevertheless, in its analysis, the Court may refer “to documents attached to the complaint

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as an exhibit or incorporated in it by reference, to matters of which judicial notice may be
taken, or to documents either in [the] [P]laintiff[’s] possession or of which [the]
[P]laintiff[ ] had knowledge and relied on in bringing suit.” Brass v. Am. Film Tech.,
Inc., 987 F.2d 142, 150 (2d Cir.1993).
In this regard, the Court declines to consider those portions of the Plaintiff’s
Affidavit in which she (1) expands upon when she first contacted the Defendants in
October of 2005 about her pension benefits and (2) suggests, for the first time, that she
wrote to the Defendants on August 21, 2012, October 16, 2012 and December 18, 2012
concerning her eligibility for pension benefits but received no response. These new
factual allegations fail to meet the criteria to allow for their consideration on a motion to
dismiss and, in any event, as discussed below, even if the Court were to consider them,
the Court’s decision to dismiss the Plaintiff’s Complaint would remain unchanged. See
Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 515 n.1 (S.D.N.Y. 2013) (“When
determining a motion to dismiss for failure to state a claim, a court is confined to the facts
as pleaded in the complaint and any permissible attachments, and a court should not
consider new facts alleged in moving papers.. . . Nonetheless, the outcome here would
not change were the Court to consider the additional facts in pro se Plaintiff’s opposition
papers.”) (citing Civic Ctr. Motors, Ltd. v. Mason St. Imp. Cars, Ltd., 387 F. Supp. 2d
378, 382 (S.D.N.Y. 2005)).
Thus, unless otherwise stated, the Court, as it must, draws the following facts
from the Plaintiff’s Complaint and construes them in a light most favorable to the
Plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949–50, 173 L. Ed. 2d 868
(2009).

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B. Underlying Factual Allegations
The Defendant Astoria is a banking institution and is authorized to conduct
business in the State of New York. (Compl., ¶ 7.) On March 29, 1997, Astoria entered
into an Agreement and Plan of Merger with Greater New York Savings Bank (“Greater”).
(Compl., ¶ 11.) Pursuant to this Agreement and Plan of Merger (the “Merger
Agreement”), on September 30, 1997, Greater merged with Astoria (the “Merger”), under
the name of Astoria. (Compl., ¶`11.)
Astoria administered the Plan at issue in this case, which is an Employees’
Pension Plan as defined by § 3(2) of ERISA, 29 U.S.C. § 1002(2)(A). (Compl., ¶ 8.)
The Plan maintained a principal office in Lake Success, New York. (Compl., ¶ 8.)
Under the terms of the Merger Agreement, each of Greater’s employees were entitled to a
pension benefit equal to his or her accrued benefit at the time of the Merger. (Compl., ¶
14.) Further, Astoria agreed that the Plan would adopt the provisions of Greater’s
pension plan into its own Plan with respect to those Greater employees for whom said
provisions applied. (Compl., ¶ 15.) One of these provisions stipulated as follows:
As a participant in the [P]lan you are eligible to
receive a pension . . . [i]f you become totally disabled after
you have completed five years of service, that is, five years
in which you have worked at least 1,000 hours of service.
In the event of total disability, your pension will commence
immediately without reduction for age. In determination of
total disability, the employer will abide by the ruling of the
Social Security Administration [(the “SSA”)] [.]
(Compl., ¶ 16.)
On September 4, 1990, the Plaintiff, a resident of Long Island, New York, began
her employment with Greater. (Compl., ¶ 6, 10.) At the time of the Merger, she was
one-hundred percent vested in the pension plan provided by Greater to its employees,

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which was, as stated above, adopted by Astoria’s Plan. (Compl., ¶¶ 13, 15.) After the
Merger, the Plaintiff continued to be employed by Astoria. (Compl., ¶ 12.)
On January 17, 2003, the Plaintiff alleges that she became totally and permanently
disabled so that she could no longer work. (Compl., ¶ 17.) On September 19, 2005, she
received a Notice of Award from the SSA notifying her that the SSA had determined that
as of January 17, 2003, she was totally and permanently disabled. (Compl., ¶ 19.)
According to the Plaintiff, she was thus qualified and eligible to receive pension benefits
under the Plan on the same date of her disability, January 17, 2003. (Compl., ¶ 18.) In
this regard, starting on January 17, 2003, the Plaintiff alleges she should have received a
pension benefit in excess of $513 per month. (Compl., ¶ 22.) In the alternative, the
Plaintiff asserts that she should have begun to receive this monthly pension benefit
beginning on either September 19, 2005, when she received her award notice from the
SSA or in October of 2005, when, as discussed in more detail below, she made her initial
application for benefits. (Compl., ¶ 22.)
Concerning her initial application for benefits, on an unspecified date in October
2005, the Plaintiff requested from the Defendants the application forms necessary to
obtain the pension benefits to which she was allegedly entitled. (Compl., ¶ 20.)
However, she claims that her request for application forms was denied and that she was
wrongfully advised by the Defendants’ employees and/or agents that she was not entitled
to pension benefits until she reached the age of fifty-five, despite having received an
award of total and permanent disability from the SSA. (Compl, ¶ 21.) The Plaintiff
asserts that the Defendants have refused and continue to refuse to pay the Plaintiff any
pension benefit before she turns fifty-five. (Compl., ¶ 23.)

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II. DISCUSSION
A. Legal Standard on a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
It is well-established that a complaint should be dismissed under Fed. R. Civ. P.
12(b)(6) only if it does not contain enough allegations of fact to state a claim for relief
that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). In this regard, as stated above, when deciding a motion
to dismiss, a court is required to accept the material facts alleged in the complaint as true
and draw all reasonable inferences in favor of the plaintiff. Iqbal, 556 U.S. at 678;
Zinermon v. Burch, 494 U.S. 113, 118, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990); In re
NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007).
As such, “[w]hen there are well-pleaded factual allegations, a court should
assume their veracity and . . . determine whether they plausibly give rise to an entitlement
of relief.” Iqbal, 556 U.S. at 679. However, “although ‘a court must accept as true all of
the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d
Cir.2009) (quoting Iqbal, 556 U.S. at 678).
B. As to Whether the Plaintiff’s ERISA Claims are Time Barred
“The ERISA statute provides a plan beneficiary with a federal right of action to
recover benefits due under the beneficiary’s plan.” Prabhakar v. Life Ins. Co. of N. Am.,
09-CV-5530 DLI VVP, 2012 WL 3685985, at *2 (E.D.N.Y. Aug. 24, 2012) (hereinafter
“Prabhakar I”) (citing 29 U.S.C. 1132(a)(1)(B)); see also Schulman v. Herbert E. Nass &
Associates SEP IRA Plan, 10 CIV. 9613 RA, 2013 WL 4860119, at *3 (S.D.N.Y. Sept.

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11, 2013) (holding that ERISA “creates a cause of action for, inter alia, a participant in a
pension plan covered by ERISA to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan”) (quoting Carey v. Int’l Bhd. of Electrical Workers
Local 363 Pension Plan, 201 F.3d 44, 46 n.2 (2d Cir. 1999)) (internal quotation marks
omitted).
“For ERISA claims that involve fiduciary responsibilities, the relevant statute of
limitations is statutorily prescribed and the claims must be brought within the earlier of
(1) six years from the date of the ‘last action which constituted a part of the breach or
violation, or [ ] in the case of an omission the latest date on which the fiduciary could
have cured the breach or violation,’ or (2) three years after ‘the earliest date on which the
plaintiff had actual knowledge of the breach or violation.’” DePasquale v. DePasquale,
12-CV-2564 RRM MDG, 2013 WL 789209, at *7 (E.D.N.Y. Mar. 1, 2013)
reconsideration denied, 2013 WL 4010214 (E.D.N.Y. Aug. 5, 2013) (citing to 29 U.S.C.
§ 1113) (internal brackets in original). “A plaintiff has actual knowledge of the breach or
violation within the meaning of [ ] 29 U.S.C. § 1113(2), when he has knowledge of all
material facts necessary to understand that an ERISA fiduciary has breached his or her
duty or otherwise violated the Act.” Boban v. Bank Julius Baer Postretirement Health &
Life Ins. Program, 723 F. Supp. 2d 560, 564 (S.D.N.Y. 2010) (quoting Caputo v. Pfizer,
Inc., 267 F.3d 181, 193 (2d Cir. 2001)) (internal quotation marks omitted).
However, when a “plaintiff’s claims [ ] do not involve fiduciary responsibilities,”
“ERISA does not provide a statute of limitations.” Id. at *8; see also Prabhakar I, 2012
WL 3685985, at *2 (“The statute does not provide a limitations period for actions under

8

Section 1132[.]”). Nevertheless, while ERISA “does not prescribe a limitations period
for 29 U.S.C. § 1132 actions,” courts are required to look to “the most nearly analogous
state limitations statute” in order to determine “the applicable limitations period.”
Because ERISA “does not prescribe a limitations period for 29 U.S.C. § 1132 actions”
such as this one, “the applicable limitations period is that specified in the most nearly
analogous state limitations statute.” Prabhakar v. Life Ins. Co. of N. Am., 09-CV-05530
PKC, 2013 WL 4458728, at *12 (E.D.N.Y. Aug. 16, 2013) (hereinafter “Prabhakar II”)
(quoting Burke v. Price WaterHouseCoopers LLP Long Term Disability Plan, 572 F.3d
76, 78 (2d Cir. 2009) (per curiam)); see also Muto v. CBS Corp., 668 F.3d 53, 57 (2d Cir.
2012) (“[T]he applicable limitations period in this § 1132 action is ‘that specified in the
most nearly analogous . . . limitations statute’ of the forum state.”) (quoting Miles v.
New York State Teamsters Conf. Pension and Ret. Fund, 698 F.2d 593, 598 (2d
Cir.1983) cert. denied, 464 U.S. 829, 104 S. Ct. 105, 78 L. Ed. 2d 108 (1983)) (ellipse in
original).
In this regard, “our Circuit holds that the appropriate statute of limitations under
analogous New York law is the six year statute of limitations that applies to claims for
breach of contract.” Schulman, 2013 WL 4860119, at *3 (quoting Schultz v. Texaco,
Inc., 127 F. Supp. 2d 443, 448 (S.D.N.Y. 2001) (in turn, citing Miles, 698 F.2d at 598));
see also Prabhakar II, 2013 WL 4458728, at *12 (“The most nearly analogous limitations
period is New York’s six-year statute of limitations for contract actions.”) (quoting Burke,
572 F.3d at 78); DePasquale, 2013 WL 789209, at *8 (“Courts in this circuit have held
that the six-year statute of limitations period under New York Civil Practice Law and

9

Rules . . . § 213 applies to claims brought under [ ] 29 U.S.C.[ ] § 1132.”) (collecting
cases).
“Under federal common law, courts generally apply the ‘discovery rule’ to
determine when an ERISA cause of action accrues, looking to when the plaintiff
discovers, or with due diligence should have discovered, the injury that is the basis of the
litigation.” Bilello v. JPMorgan Chase Ret. Plan, 607 F. Supp. 2d 586, 592 (S.D.N.Y.
2009) (internal quotation marks and citation omitted). In the 29 U.S.C. § 1132 context,
“ERISA claims begin to accrue ‘upon a clear repudiation that is known, or should be
known, to the plaintiff—regardless of whether the plaintiff has filed a formal application
for benefits.’” Kotler v. Charming Shoppes Inc., 11 CIV. 3296 SAS, 2012 WL 291512
(S.D.N.Y. Jan. 31, 2012) (quoting Carey v. International Broth. of Elec. Workers Local
363 Pension Plan, 201 F.3d 44, 49 (2d Cir. 1999)).
In this case, according to the Complaint, the Plaintiff learned that she would not
be receiving pension benefits under the Plan when the Defendants denied her October
2005 request for application forms and told her she did not qualify for benefits before she
reached the age of fifty-five. (Compl., ¶¶ 20–21.) Such a denial constitutes “a clear
repudiation,” since she was “unequivocally notified that [ ] her claim for benefits ha[d]
been denied.” Yuhas v. Provident Life and Cas. Ins. Co.,126 F. Supp. 2d 227, 222–23
(S.D.N.Y. 2001). Similarly, as to the Plaintiff’s claim that the Defendants breached their
fiduciary duty, the Plaintiff had actual knowledge of their potential breach in October of
2005, since “[she] ha[d] knowledge of all material facts necessary to understand that an
ERISA fiduciary ha[d] breached his or her duty or otherwise violated the Act,” in that she
knew the Defendants had refused to award her pension benefits despite the alleged terms

10

of the Plan. Caputo v. Pfizer, Inc., 268 F.3d 181, 193 (2d Cir. 2001). As such, because
the October 2005 repudiation occurred approximately seven years and five months before
the Plaintiff commenced the instant action on March 26, 2013, her ERISA claims are well
outside the applicable statute of limitations.
Further, even if the Court were to consider Plaintiff’s subsequent 2012 requests
for benefits, which the Plaintiff improperly raises in her opposition, the Court would still
find her ERISA claims time barred, as these additional factual allegations do not alter the
Plaintiff’s assertion contained in her Complaint that the initial repudiation occurred in
October of 2005. Accordingly, the clock began to run on the Plaintiff’s ERISA claims in
October of 2005 and could not be reset by the Plaintiff submitting additional requests.
See, e.g., O’Donnell v. Metlife Disability Ins. Co., at *4 (S.D.N.Y. Mar. 31, 2009)
(“Notwithstanding [the] [p]laintiff’s allegations of communications subsequent to
October 30, 2001, the Complaint does not allege any events or facts that could cast doubt
on the conclusion that [a] statement [by the defendant’s employee] to [the] [p]laintiff on
October 30, 2001 was a clear notification of [the defendant’s] final denial of [the]
[p]laintiff’s claim. Allegations that [the defendant] reiterated its denial in writing and
sometimes responded to [the] [p]laintiff’s continued inquiries do not enable [the]
[p]laintiff to state a claim that the limitations period restarted after October 30, 2001.”).
The Plaintiff’s new factual allegations about her October 2005 request for pension
benefits also do not merit a different outcome. In this regard, the Plaintiff claims she
called the Defendants in October of 2005 and explained that she had received an SSA
award and was thus entitled to pension benefits under the Plan regardless of her age.
However, she was nevertheless informed by one of the Defendants’ employees or agents

11

that she was not entitled to receive pension benefits in spite of her SSA award because
she had not reached the age of fifty-five. Therefore, the extra factual allegations that the
Plaintiff improperly includes in her opposition papers simply confirm that she indeed
received a clear repudiation in October of 2005. See, e.g., Green v. Int’l Bus. Machs.
Corp., No. 01–CV–2334, 2001 WL 736811, at *2 (S.D.N.Y. June 22, 2001) (“[The]
[p]laintiffs complaint alleges that he received a telephone call on January 24, 1995 in
which [he was] told . . . that the plan was terminated. He received a letter to that effect . . .
several days later. [The] [p]laintiffs’ cause of action accrued on January 24, 1995, the
date he learned of [the defendant’s] repudiation.”).
As a final matter, to the extent the Plaintiff contends that this Court should relax
the applicable statute of limitation in this case as matter of public policy, the Court is not
persuaded by her argument. Indeed, the Second Circuit has held as follows:
[T]he Supreme Court has noted [that] the length of
a limitation period for instituting suit in federal court
inevitably reflects a value judgment concerning the point at
which the interests in favor of protecting valid claims are
outweighed by the interests in prohibiting the prosecution
of stale ones. Statutes of limitation serve several important
policies, including rapid resolution of disputes, repose for
those against whom a claim could be brought, and
avoidance of litigation involving lost evidence or distorted
testimony of witnesses. For these reasons, statutes of
limitation are not to be disregarded by courts out of a vague
sympathy for particular litigants. Indeed, strict adherence
to limitation periods is the best guarantee of evenhanded
administration of the law.
Carey, 201 F.3d at 47 (2d Cir. 1999) (citations and internal quotation marks omitted).
The Court sees no reason in the instant case to veer from this precedent.
Accordingly, as the Plaintiff’s ERISA causes of action are time-barred, these
claims are dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Young v. Gen.

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Motors Inv. Mgmt. Corp., 550 F. Supp. 2d 416, 417 (S.D.N.Y. 2008) aff'd, 325 F. App’x
31 (2d Cir. 2009) (“Because the Court finds that the [ ] statute of limitation bars [the]
[p]laintiffs’ claims in their entirety, . . . [the] [p]laintiffs’ complaint is dismissed with
prejudice.”).
C. As to the Plaintiff’s Remaining State Law Claims
In addition to the four ERISA claims, the Complaint also contains five state law
causes of action. However, the Court finds that these state law claims are preempted by
ERISA.
“The Supreme Court has established that ERISA is one of those federal statutes
that completely pre-empts state law causes of action,” since its “purpose [ ] is to provide
a uniform regulatory regime over employee benefit plans.” Enigma Mgmt. Corp. v.
Multiplan, Inc., 13-CV-5524 ARR JO, 2014 WL 297269, at *3 (E.D.N.Y. Jan. 27, 2014)
(citing Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S. Ct. 2488, 159 L. Ed. 2d
312 (2004)). In this regard, “Congress intended that this provision would create a
comprehensive, exclusive remedial scheme, and ‘any state-law cause of action that
duplicates, supplements, or supplants the ERISA civil enforcement remedy . . . is
therefore pre-empted.’” Id. (quoting Davila, 542 U.S. at 209) (ellipse in the original).
“A cause of action is pre-empted if (1) the plaintiff could have brought the claim
under ERISA’s civil enforcement scheme, and (2) ‘there is no other independent legal
duty that is implicated by a defendant’s actions.’” Id. at *4 (quoting Davila, 542 U.S. at
210). With respect to the first prong, courts within the Second Circuit employ “two
separate inquiries: (1) ‘whether the plaintiff is the type of party that can bring a claim’
under ERISA’s civil enforcement scheme, and (2) ‘whether the actual claim that the

13

plaintiff asserts can be construed as a colorable claim for benefits’ under ERISA.” Id.
(quoting Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 328 (2d Cir.
2011)).
Here, the Plaintiff brings state law claims for (1) breach of contract; (2) breach of
common law fiduciary duty; (3) fraud; (4) violation of NYGBL § 349; and (5)
negligence. She uses all of these claims as vehicles to allege that she is entitled to
pension benefits under the Plan and that the Defendants have wrongly denied her of such
benefits and misrepresented her entitlement to pension benefits.
However, courts have held that all of these state law causes of action are
preempted by ERISA. See, e.g., Enigma, 2014 WL 297269, at *10 (“The Second Circuit
has held that state common law claims of fraudulent misrepresentation are preempted by
ERISA if the false representation concerns the existence, terms, or benefits of an ERISA
plan.”) (citing Cicio v. Does 1–8, 321 F.3d 83, 96 (2d Cir. 2003), vacated on other
grounds sub nom., Vytra Healthcare v. Cicio, 542 U.S. 933 (2004)); Shearon v. Comfort
Tech Mech. Co., Inc., 936 F. Supp. 2d 143, 159 (E.D.N.Y. 2013) (holding that “[t]o the
extent [the] [p]laintiff’s proposed breach of fiduciary duty claim might be read to arise
out of any common law fiduciary duty, it is preempted by ERISA,” because the “claim
seeks to recover benefits and to enforce rights under ERISA-governed plans”) (citing
Harrison v. Metro Life Ins. Co., 417 F. Supp. 2d 424, 431 (S.D.N.Y. 2006));
Zarringhalam v. United Food & Commercial Workers Int’l Union Local 1500 Welfare
Fund, 906 F. Supp. 2d 140, 150 (E.D.N.Y. 2012) (“[T]he law is clear that ERISA
preempts state law breach of contract claims seeking the recovery of benefits due under
an employee welfare benefit plan because they ‘relate to’ those plans within the meaning

14

of section 514.”) (citing 29 U.S.C. § 1144(a) and collecting cases); Mcguigan v. Local
295/Local 851 I.B.T. Employer Grp. Pension Plan, 11-CV-2004 JG MDG, 2011 WL
3421318, at *9 (E.D.N.Y. Aug. 4, 2011) (holding that the plaintiff’s negligence claim,
among other state law claims, was preempted by ERISA because “[d]espite [the
plaintiff’s attempt to base his common law claims in non-ERISA legal terrain [such as]
negligence[,]” his “claims derive[d] directly from the Plan, its administration, and the
rights and benefits it affords its participants” and “[were] based on the same facts and
supported by the same allegations that underlie the ERISA claims”); Berry v. MVP
Health Plan, Inc., 1:06-CV-120 (NAM/RFT, 2006 WL 4401478, at *6 (N.D.N.Y. Sept.
30, 2006) (“[P]laintiffs’ [NYGBL] § 349 claim, which ‘relates to’ an employee benefit
plan and falls within the scope of ERISA’s civil enforcement provisions, is preempted.”)
(citing Shackelton v. Connecticut General Life Ins. Co., 817 F. Supp. 277
(N.D.N.Y.1993)).
Accordingly, because all of the Plaintiff’s state law claims are preempted, the
Court grants the Defendants’ Rule 12(b)(6) motion and dismisses these claims with
prejudice. Gateway, Inc. v. ACS Commercial Solutions, Inc., 07 CIV. 6732CM, 2008
WL 1741249, at *1 (S.D.N.Y. Apr. 10, 2008) (“The motion to dismiss plaintiff’s state
law claims [ ] is granted, and those claims are dismissed with prejudice, because they are
preempted by ERISA.”); Flynn v. Hach, 138 F. Supp. 2d 334, 357 (E.D.N.Y. 2001) (“The
court hereby dismisses these claims with prejudice as preempted by ERISA.”).
III. CONCLUSION
For the foregoing reasons, it is hereby

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ORDERED that the motion by the Defendants to dismiss this action pursuant to
Fed. R. Civ. P. 12(b)(6) is granted with prejudice and the Plaintiff’s Complaint is
dismissed in its entirety because (1) the ERISA claims are time-barred and (2) the
Plaintiff’s remaining state law claims are preempted by ERISA; and it is further
ORDERED that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
February 4, 2014
___/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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