Nambiar v. The Central Orthopedic Group, LLP et al

Filing 69

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION granting 53 Motion for Summary Judgment; denying 57 Motion for Reconsideration re 53 MOTION for Summary Judgment; adopting Report and Recommendation as to 66 Report and Recommendati on. For the stated reasons, IT IS HEREBY ORDERED that Plaintiff's objections (ECF No. 67) are OVERRULED, the R&R (ECF No. 66) is ADOPTED in its entirety, and Defendants' Motion for Summary Judgment (ECF No. 53) is GRANTED. It is FURTHER O RDERED that Plaintiff's motions: (1) to strike; and (2) for reconsideration (ECF No. 57) are DENIED. It is FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over Plaintiff's breach of contract claim. After judgment is entered in favor of Defendants, the Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/26/2024. (CV)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
SEEMA V. NAMBIAR, M.D.,
Plaintiff,

MEMORANDUM & ORDER
19-CV-0938 (JS)(ARL)

-againstTHE CENTRAL ORTHOPEDIC GROUP,
LLP; DAVID ZITNER, M.D.; SCOTT
SILVERBERG, M.D.; JORGE BAEZ,
M.D.; MITCHELL KESCHNER, M.D.;
JORDAN KERKER, M.D.; and FERNANDO
CHECO, M.D.,
Defendants.
--------------------------------X
APPEARANCES
For Plaintiff:

Christopher J. DelliCarpini, Esq.
Sullivan Papain Block McManus Coffinas
& Cannavo P.C.
1140 Franklin Avenue, Suite 200
Garden City, New York 11530
Frank V. Floriani, Esq.
Sullivan Papain Block McManus Coffinas
& Cannavo P.C.
120 Broadway, 27th Floor
New York, New York 10271

For Defendants:

Daniel S. Moretti, Esq.
Daniel Tarolli, Esq.
Jamar Quartrell Green, Esq.
Rebecca R. Embry, Esq.
Tina Bhatt, Esq.
Landman Corsi Ballaine & Ford P.C.
120 Broadway, 13th Floor
New York, New York 10271
Aryeh Roskies, Esq.
DTO Law
27 East 28th Street, Suite 15019
New York, New York 10016

SEYBERT, District Judge:
On February 15, 2019, Plaintiff Seema V. Nambiar, M.D.
(hereafter, “Plaintiff”) commenced this employment discrimination
action

against

Defendants

(hereafter,

“Central

Silverberg,

M.D.,

The

Central

Orthopedic”),

Jorge

Baez,

Orthopedic

David

M.D.,

Zitner,

Mitchell

Group,

LLP

M.D.,

Scott

Keschner,

M.D.,

Jordan Kerker, M.D., and Fernando Checo, M.D., (collectively, with
Central

Orthopedic,

“Defendants”),

alleging:

(1)

age

discrimination in violation of 29 U.S.C § 623 and N.Y. Executive
Law § 296(1);
U.S.C.
in

(2) sex

discrimination

in

violation

of

42

§ 2000e—2 and N.Y. Executive Law 296(1); (3) retaliation

violation

of

42 U.S.C. § 2000e—3

and

N.Y.

Executive

Law § 296(7); (4) breach of contract; and (5) aiding and abetting
discrimination and retaliation in violation of N.Y. Executive
Law § 296(6).

(See generally, Compl., ECF No 2.)

On February 1, 2024, Magistrate Judge Arlene R. Lindsay
(hereafter, “Judge Lindsay”) issued a Report and Recommendation
(hereafter,

“Report”

or

“R&R”)

recommending

the

Court

grant

Defendants’ Motion for Summary Judgement and deny Plaintiff’s
joint

Motion

Exhibits.

for

Reconsideration

(R&R, ECF No. 66, at 1.)

and

to

Strike

Defendants’

On February 9, 2024, Plaintiff

filed Objections to Judge Lindsay’s R&R, to which Defendants
responded on February 23, 2024.

2

(Objs., ECF No. 67; Reply to

Objs., ECF No. 68.)

For the reasons that follow, Plaintiff’s

Objections are OVERRULED, the R&R is ADOPTED, and Defendants’
Motion for Summary Judgment is GRANTED in its entirety.

The Court

declines to exercise supplemental jurisdiction over Plaintiff’s
breach of contract claim.

Accordingly, the Clerk of Court is

directed to mark this case CLOSED.
BACKGROUND
I.

Factual and Procedural Background
The

adopts,

and

Court

presumes

incorporates

the

parties’

herein,

the

background as set forth in the R&R.

familiarity

factual

and

(R&R at 1-26.)

with,

procedural

See generally

Sali v. Zwanger & Pesiri Radiology Grp., LLP, No. 19-CV-0275, 2022
WL 819178, at *1 (E.D.N.Y. Mar. 18, 2022) (where no party challenges
magistrate
background

judge’s
of

recitation

the

case,

upon

of

the

clear

factual

error

and

review,

procedural

adopting

and

incorporating same into court’s order).

II.

Plaintiff’s Objections to the R&R
Plaintiff

Lindsay’s

R&R.

asserts

In

four

particular,

primary

objections

Plaintiff

contends

to

Judge

the

R&R:

(1) ignored the fact that Plaintiff met the first three McDonnell
Douglas

criteria

for

making

a

prima

facie

showing

of

sex

discrimination and instead relied upon Plaintiff’s failure to meet
the fourth criteria when recommending summary judgment be granted;
(2) relied upon unauthenticated and inadmissible evidence, which
3

the

Court

should

have

stricken;

(3)

disregarded

Plaintiff’s

evidence indicating the reasons for Plaintiff’s termination were
a pretext for sex discrimination; and (4) failed to analyze
Plaintiff’s claims for aiding and abetting discrimination in light
of “the Court’s determination [to grant summary judgment as to]
the discrimination and retaliation claims.”
In

response,

(1) appropriately

focused

Defendants
on

the

(Objs. at 1-10.)1

argue
fourth

Judge
element

Lindsay:
of

sex

discrimination under the McDonnell Douglas framework; (2) properly
found the evidence submitted by Defendants could be authenticated
and was admissible; (3) correctly concluded that Plaintiff cannot
prove pretext; and (4) properly found Plaintiff’s aiding and
abetting claims should be dismissed based upon the dismissal of
the underlying sex discrimination claim.

(Reply to Objs. at 1-9.)

The Court finds Plaintiff’s Objections to be without
merit and addresses each, in turn, below.

Plaintiff does not object to Judge Lindsay’s recommendations to:
(1) grant Defendants’ Summary Judgment Motion with regard to
Plaintiff’s age discrimination claim; and (2) deny Plaintiff’s
motion for reconsideration of her retaliation claim. Accordingly,
Judge Lindsay’s recommendations as to those claims are reviewed
for clear error. Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp.
2d 290, 296 (E.D.N.Y. 2013), aff’d, 578 F. App’x 51 (2d Cir. 2014)
(“The Court reviews portions of the R&R to which a party makes no
objection for clear error”). Upon clear error review of Judge
Lindsay’s recommendations as to these claims, the Court finds none.
Judge Lindsay’s recommendations to dismiss Plaintiff’s age
discrimination claim and to deny Plaintiff’s motion for
reconsideration are therefore ADOPTED.
1

4

DISCUSSION
I.

Legal Standard
A. Report and Recommendation
A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
The

district

however,

judge

where

a

must
party

evaluate
“makes

proper
only

objections

conclusory

or

de

novo;

general

objections, or simply reiterates [the] original arguments, the
Court reviews the Report and Recommendation only for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)
(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1
(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3); see also U.S.
Small Bus. Admin. v. Ameritrans Holdings, LLC, No. 20-CV-1166, 2024
WL 704621, at *2 (E.D.N.Y. Feb. 21, 2024) (applying clear error review
where “[d]efendants’ regurgitation of their original arguments [was]
readily apparent when comparing their [underlying motion] to their
[o]bjections”).

Moreover, the Court need not review the findings

and conclusions to which no proper objection has been made. Thomas
v. Arn, 474 U.S. 140, 150 (1985).

5

B. Summary Judgment
The Court shall grant summary judgment under Rule 56(a)
when “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a).

A fact is material for the purposes

of resolving a summary judgment motion “when it might affect the
outcome of the suit under the governing law.”
808 F. App’x 14, 16 (2d Cir. 2020).

Adamson v. Miller,

“An issue of fact is ‘genuine’

if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Id. (quoting Jeffreys v. City

of N.Y., 426 F.3d. 549, 553 (2d Cir. 2005)).
“The

movant

bears

the

burden

of

‘demonstrating

absence of a genuine issue of material fact.’”

the

Nick’s Garage,

Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). This
burden may be satisfied by either: (1) submitting evidence that
negates an essential element of the non-moving party’s claim; or
(2) by demonstrating that the non-moving party’s evidence is
insufficient to establish an essential element of the non-moving
party’s claim.

Id.

Once the moving party has met its burden, the

non-moving party must “do more than simply show that there is some
metaphysical doubt as to material facts and instead offer some
hard evidence showing that its version of events is not wholly

6

fanciful.”

Stein v. County of Nassau, 417 F. Supp. 3d 191, 197

(E.D.N.Y. 2019) (citations omitted).
“Summary judgment is inappropriate when the admissible
materials in the record make it arguable that the claim has merit.”
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(citations and quotation marks omitted).

In reviewing the record,

the Court “may not make credibility determinations or weigh the
evidence” as such determinations are to be made by the jury, not
the judge.

Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,

530 U.S. 133, 150 (2000)).

Accordingly, where an issue as to a

material fact cannot be resolved without weighing the credibility
of a witness, summary judgment is improper. Id.
Finally, courts employ “an extra measure of caution”
before “granting or affirming summary judgment in a discrimination
action because direct evidence of discriminatory intent is rare.”
Moll v. Telesector Res. Grp., Inc., No. 20-CV-3599, 2024 WL 820179,
at *4–5 (2d Cir. Feb. 28, 2024) (citing Holtz v. Rockefeller &
Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001), abrogated in part on
other grounds by Gross v. FBL Financial Services, Inc., 557 U.S.
167 (2009)). “Thus, the court must scrutinize affidavits and
depositions

carefully

for

circumstantial

evidence

that,

if

credited by the factfinder, could reasonably be interpreted as
showing discrimination.”
appropriate

“even

in

Id.

However, summary judgment may be

discrimination
7

cases,”

as

“the

salutary

purposes of summary judgment — avoiding protracted, expensive and
harassing trials — apply no less to discrimination cases than to
other areas of litigation.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quoting Meiri v. Dacon, 759 F2d 989, 998
(2d Cir. 1985) (alterations omitted)).
II.

Analysis
A. Plaintiff’s Objections Warrant Clear Error Review
Turning to Plaintiff’s objections, the Court finds them

to be “mere reiterations of the arguments in [the] original papers
that were fully considered, and rejected, by” Judge Lindsay.
of

the

Blue

Wholesale,

LLC

v.

Pac.

Am.

Fish

Co.,

Out
Inc.,

No. 19-CV-0254, 2020 WL 7488072, at *2 (E.D.N.Y. Dec. 21, 2020)
(quoting Rizzi v. Hilton Domestic Operating Co., Inc., No. 19-CV1127, 2020 WL 6243713, at *2 (E.D.N.Y. Oct. 23, 2020) (collecting
cases)).

Indeed,

Plaintiff’s

regurgitation

of

her

original

arguments is apparent when comparing her underlying opposition to
her objections.

(Compare Opp. Support Memo, ECF No. 55, at 6-7

(arguing Plaintiff “undisputedly meets the first three elements”
of the McDonnell Douglas standard and meets the fourth element
based upon Defendants’ hiring of a younger physician who was not
board-certified), 3-5 (arguing Defendants’ evidence should not be
considered because it either cannot be authenticated or is not
admissible), 12-16 (arguing certain comments made by Defendants
are circumstantial evidence of pretext), 16-17 (acknowledging
8

Defendants’ argument that the aiding and abetting claims should be
dismissed if there was “no discrimination in the first place,” and
stating such argument is insufficient on its own to require
dismissal), with Objs. 1-10 (same)). Thus, the Court reviews Judge
Lindsay’s Report for clear error.
B. Objection
Criteria

1:

Evaluation

of

the

McDonnell

Douglas

As her first objection, Plaintiff asserts the Magistrate
Judge erred by recommending the Court grant summary judgment
despite the fact that she “did not even consider the first three
McDonnell

Douglas

criteria,

but

rather . . .

based

her

recommendation on her finding that [Plaintiff] failed to meet her
burden on the fourth element.”
premised

upon

a

(Objs. at 3.)

misunderstanding

of

the

This objection is
McDonnell

Douglas

standard, and accordingly the Court declines to sustain it.
“Claims of sex-based discrimination under Title VII and
NYHRL are analyzed using the familiar burden-shifting framework
established in McDonnell Douglas Corp. v. Green.”

Clay v. County

of Suffolk, 404 F. Supp. 3d 737, 753 (E.D.N.Y. 2019); McDonnell
Douglas, 411 U.S. 792 (1973).
At the first step of the McDonnell Douglas
framework, the plaintiff must establish a
prima facie case of sex discrimination by
demonstrating that (1) she was within the
protected class; (2) she was qualified for the
position; (3) she was subject to an adverse
employment action; and (4) the adverse action

9

occurred under circumstances giving rise to an
inference of discrimination.
Id. (citing Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d
Cir. 2006)) (internal citations omitted) (emphasis added).

This

standard makes clear, in order to make a prima facie showing of
sex discrimination, a plaintiff must prove
elements outlined above.

each of the four

Thus, even assuming Plaintiff was able

to establish the first three elements of the McDonnell Douglas
framework, Plaintiff’s failure to meet the fourth criteria, i.e.,
failing to show the adverse action occurred under circumstances
giving rise to the inference of discrimination, is enough to grant
summary judgment in favor of Defendants.

See, e.g., Smith v. New

York & Presbyterian Hosp., 440 F. Supp. 3d 303, 334 (S.D.N.Y. 2020)
(granting

summary

judgment

in

defendants’

favor

upon

finding

purported “adverse actions” were not taken in circumstances giving
rise to an inference of discrimination); Chuang v. T.W. Wang Inc.,
647 F. Supp. 2d 221, 230 (E.D.N.Y. 2009) (granting summary judgment
in defendant’s favor where Plaintiff “failed to make a prima facie
showing that the circumstances surrounding his termination give
rise to an inference of discrimination”); Worrell v. N.Y.C. Dep’t
of

Educ.,

140

F.

Supp.

3d

231,

240

(E.D.N.Y.

2015)

(same).

Consequently, it was entirely appropriate for Judge Lindsay to
recommend Defendants’ Summary Judgment Motion be granted based
upon

Plaintiff’s

failure

to

establish

10

the

requisite

fourth

McDonnell Douglas element, that is, that an adverse action occurred
under circumstances giving rise to an inference of discrimination.
C. Objection
Evidence

2:

Authentication

and

Admissibility

of

1. Authentication
Plaintiff argues Judge Lindsay impermissibly relied upon
unauthenticated

documents

when

recommending

Defendants’ Summary Judgment Motion.

the

Court

(Objs. at 4.)

grant

Notably,

Plaintiff does not argue that the exhibits relied upon by Judge
Lindsay were inauthentic, but rather, that Defendants “likely will
never be able to authenticate” certain documents, while conceding
that “Defendants will be able to at least authenticate their own
statements.”

(Id.)

Plaintiff further asserts Defendants “made no

attempt to authenticate any of their exhibits,” despite the fact
that Defendants’ counsel, Rebecca Embry, swore under penalty of
perjury that such exhibits were “true and correct copies” of what
they purport to be.
objecting,

(Objs. at 4; Embry Decl., ECF No. 37.)

Plaintiff

misunderstands

the

law

In so

governing

authentication of documents.
As a general matter, “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent”
need only “produce evidence sufficient to support a finding that
the item is what the proponent claims it is.”

FED.R. EVID 901(a).

District courts have “broad discretion to determine whether a piece

11

of evidence has been properly authenticated.”

United States v.

Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004).

Moreover where a

party submits exhibits to the Court, which are properly supported
by

an

attorney

declaration

swearing

as

to

the

exhibits’

authenticity, and where such documents were already produced by
parties through the course of discovery, the Court may conclude
the exhibits are “reasonably likely to be that which the defendants
claim [them] to be.”2

Hallett v. Stuart Dean Co., 517 F. Supp. 3d

260, 268 (S.D.N.Y. 2021); Jenkins v. Portfolio Recovery Assocs.,
LLC, No. 14-CV-3532, 2017 WL 1323798, at *4, n.4 (E.D.N.Y. Feb.
13, 2017) (dismissing plaintiff’s claims that the documents relied
upon for summary judgment had not been properly authenticated
where, inter alia, the documents were supported by a declaration
“under the penalty of perjury that [declarant] is an attorney
familiar with this case, and that the documents submitted as
exhibits to his declaration ‘are true and accurate copies of
documents referenced’” in the summary judgment motion); (see also

The Court further finds Plaintiff’s reliance upon Russo v. Estee
Lauder Corporation, 856 F.Supp.2d 437 (2012), to be misplaced. In
Russo, the undersigned granted plaintiff’s motion to strike a
document as inauthentic where there were several indicia of
unreliability. One such indicium was testimony from the purported
author of the document who testified he did not recognize the
document, did not believe the initials appearing on the document
to be his, and did not recall having knowledge sufficient to
support the statements made in the document. Id. at 446-47. Here,
no such testimony exists, and, as stated supra and noted by Judge
Lindsay, Plaintiff fails to dispute the authenticity of the
documents at issue. (R&R at n.1.)
2

12

Emry Decl. and accompanying exhibits (swearing under penalty of
perjury that the exhibits are “true and correct cop[ies]” of what
they purport to be and including exhibits bearing bates stamps)).
This is especially true where, as here, the party claiming the
documents cannot be authenticated “offers no specific reason to
doubt any document’s authenticity.”

Hallett, 517 F. Supp. at 268.

Furthermore, as Judge Lindsay aptly stated, “the Court
has

the

discretion

to

consider

unauthenticated

or

otherwise

objectionable evidence where it is apparent that the party may be
able to authenticate and establish the admissibility of those
documents at trial.”

(R&R at n.1 (citing Bhd. Mut. Ins. Co. v.

Ludwigsen, No. 16-CV-6369, 2018 WL 4211319, at *5 (S.D.N.Y. Sept.
4, 2018) (internal quotation marks omitted)).

Therefore, in light

of: (1) the Emry Declaration swearing to the authenticity of
Defendants’ exhibits; (2) Plaintiff’s failure to assert any reason
to doubt the exhibits’ authenticity; and (3) the Court’s finding
that it is apparent Defendants would be able to authenticate said
exhibits

at

considered
Accordingly,

trial,

the

Defendants’
Plaintiff’s

Court

finds

Judge

exhibits

in

objection

concerning

Lindsay

issuing

her

Judge

properly
Report.
Lindsay’s

reliance upon purportedly unauthenticated documents is overruled.
2. Admissibility
Plaintiff further avers that the exhibits relied upon by
Judge Lindsay in the R&R are inadmissible because they are hearsay
13

and not subject to the “state of mind” exception set forth in
Federal Rule of Evidence (“Rule”) 803(3).

However, Judge Lindsay

did not consider the purported hearsay evidence based upon the
hearsay exception provided in Rule 803(3) for statements of a
“declarant’s then-existing state of mind,” but rather, determined
the statements were not hearsay at all because they were not being
offered for the truth of the matter asserted.

(R&R at n.1.)

Indeed,

hearsay

“the

Federal

Rules

of

Evidence

define

as

a

declarant’s out-of-court statement offered in evidence to prove
the truth of the matter asserted in the statement.”

United States

v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (citing FED. R. EVID.
801(C) (internal

quotations

and

alterations

omitted)).

The

exhibits in question which purportedly contain hearsay accounts of
complaints against Plaintiff were not offered for the truth;
rather, they were being offered to show they were received by
Defendants thereby prompting Defendants to believe there were
issues

with

Plaintiff’s

job

performance.

As

Judge

Lindsay

correctly concluded, the critical determination to be made by the
Court is not whether the work-related complaints made against a
plaintiff are true, but rather, the employer’s “state of mind”
when making employment decisions. See Poppito v. Northwell Health,
Inc., No. 15-CV-7431, 2019 WL 3767504, at *3 (E.D.N.Y. Aug. 9,
2019) (citing Kaur v. N.Y. City Health & Hosps. Corp., 688 F. Supp.
2d 317, 323 (S.D.N.Y. 2010)).
14

Because the exhibits considered by Judge Lindsay were
not being offered for the truth, but rather, were being offered as
evidence that Plaintiff’s termination was based upon legitimate,
non-discriminatory reasons, the Court finds these documents were
not “inadmissible hearsay.”
Judge Lindsay

having

recommendation

to

the

Accordingly, there was no error in

relied upon the exhibits in making her
Court;

hence,

Plaintiff’s

objection

is

overruled.
D. Objection 3: Evidence of Pretext
As her third objection, Plaintiff asserts Judge Lindsay
disregarded Plaintiff’s evidence that “Defendants’ ‘onslaught of
complaints’ was a pretext” for discrimination. (Objs. at 6.) This
objection, however, is premised upon a purported finding that
Plaintiff established a prima facie case of sex discrimination in
the first instance, which she has not for the reasons discussed
supra Part II.B.

See Kirkland v. Cablevision Sys., 760 F.3d 223,

225 (2d Cir. 2014) (“Once an employee makes a prima facie case
of . . . discrimination . . ., the burden shifts to the employer
to give a legitimate, non-discriminatory reason for its actions.
If the employer does so, the burden then shifts back to the
plaintiff to show that the employer’s explanation is a pretext
for . . . discrimination”) (internal citations omitted).

Because

Plaintiff never made a prima facie showing of discrimination, the
burden never shifted to Defendants to prove a non-discriminatory
15

reason for its actions, nor did it shift back to Plaintiff to show
the reasons offered by Defendants were pretextual.

Id.

Moreover,

even if the burdens had so shifted, the R&R indicates Judge Lindsay
evaluated Plaintiff’s proffered evidence to support her pretext
argument, but found said evidence was insufficient “to convince a
reasonable

jury

that

[Central

Orthopedic]’s

legitimate

discriminatory reason for terminating her was a pretext.”
37.)

non-

(R&R at

The Court agrees and therefore overrules Plaintiff’s third

objection.
E. Objection 4: Aiding and Abetting Discrimination
Plaintiff contends Judge Lindsay erred in concluding,
“[g]iven the Court’s determination [recommending dismissal of] the
discrimination

and

retaliation

claims . . . the

abetting claim [should also] be dismissed.”
9-10.)

This objection is unavailing.

aiding

and

(R&R at 39; Objs. at

It is well-established, and

indeed logically follows, that to prove a person aided or abetted
in a discriminatory practice, one must first prove the existence
of the alleged underlying discriminatory practice.

See Pellegrini

v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 356 (N.D.N.Y. 2010)
(“Importantly, since it is the employer’s participation in the
discriminatory practice which serves as the predicate for the
imposition of liability on others for aiding and abetting, a
plaintiff cannot prevail against an individual on her state [aiding
and abetting] claims unless she can first establish the liability
16

of her employer.”) (internal citations and alterations omitted);
see also Johnson v. Cnty. of Nassau, 82 F. Supp. 3d 533, 537
(E.D.N.Y. 2015) (same, but finding that such employer need not be
a party to the case); Dunson v. Tri-Maint. & Contractors, Inc.,
171 F. Supp. 2d 103, 114 (E.D.N.Y. 2001) (“Defendants’ argument
that [an individual defendant] cannot be held liable for aiding
and

abetting

presumes

[plaintiff]

has

[defendant

company]

laws.”).

failed

Thus,

in

a

determination

to

prove,

violated
light

of

as

any

a

by

this

matter

employment

this

Court’s

court

that

law,

that

of

discrimination

adoption

of

Judge

Lindsay’s recommendation that Defendants are entitled to summary
judgment as to Plaintiff’s sex and age discrimination claims, the
Court finds Defendants are also entitled to summary judgment as to
Plaintiff’s aiding and abetting claim.

Therefore, the Court

overrules Plaintiff’s objection as to her aiding and abetting
claim.
CONCLUSION
For

the

stated

reasons,

IT

IS

HEREBY

ORDERED

that

Plaintiff’s objections (ECF No. 67) are OVERRULED, the R&R (ECF
No. 66) is ADOPTED in its entirety, and Defendants’ Motion for
Summary Judgment (ECF No. 53) is GRANTED.
that

Plaintiff’s

motions:

(1)

to

reconsideration (ECF No. 57) are DENIED.

17

It is FURTHER ORDERED

strike;

and

(2)

for

It is FURTHER ORDERED that the Court declines to exercise
supplemental jurisdiction over Plaintiff’s breach of contract
claim. After judgment is entered in favor of Defendants, the Clerk
of the Court is directed to mark this case CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: March 26, 2024
Central Islip, New York

18