X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

MEMORANDUM AND ORDER   On May 15, 2018, Plaintiff Marat Gokhberg (“Plaintiff”) filed this action in New York State Supreme Court, Kings County, alleging causes of action for retaliation under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), as well as breach of contract and unjust enrichment. See, generally, Notice of Removal, Docket (“Dkt.”) Entry No. 1. On November 9, 2018, PNC Bank, N.A. (“Defendant”) timely and properly removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. §1332. Id. On February 8, 2019, Plaintiff filed an Amended Complaint. See, Am. Compl., Dkt. Entry No. 14. Subsequently, the parties stipulated to, and the Court ordered, dismissal of the breach of contract and unjust enrichment claims. See, Dkt. Entry Nos. 17-18. On March 25, 2019, Defendant moved to dismiss the remaining causes of action for retaliation pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See, Notice of Mot. to Dismiss, Dkt. Entry No. 19; Def.’s Mem. of Law in Supp. of its Mot. to Dismiss (“Def. Mem.”), Dkt. Entry No. 19-1. Plaintiff opposed Defendant’s motion and cross-moved for leave to file a Second Amended Complaint. See, Notice of Cross-Mot. to Amend the Compl., Dkt. Entry No. 20; Pl.’s Mem. of Law in Supp. of Pl.’s Cross-Mot. to Amend and in Opp’n to Def.’s Mot. for Summ. J. [sic] (“Pl. Mem.”), Dkt. Entry No. 20-1; Second Amended Verified Complaint (“SAVC”), Dkt. Entry No. 20-3. Defendant opposed the cross-motion and filed a reply in further support of its motion to dismiss. See, Def.’s Mem. of Law in Further Support of its Mot. to Dismiss and in Opp’n to Pl.’s Cross-Mot. to Amend (“Def. Reply”), Dkt. Entry No. 23. Plaintiff also filed a reply in further support of his cross-motion to amend. See, Pl.’s Mem. of Law in Further Support of Pl.’s Cross-Mot. to Amend (“Pl. Reply”), Dkt. Entry No. 26. For the reasons set forth below, Defendant’s motion to dismiss is granted only to the extent that Counts III and IV are dismissed and Plaintiff is granted leave to amend only with respect to Counts I and II, the retaliation claims relating to him. BACKGROUND The following facts are taken from the Amended Complaint and are accepted as true for purposes of this decision. See, DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87 (2d Cir. 2013). I. The Parties’ Submissions of Materials Extrinsic to the Pleadings In support of its motion to dismiss, Defendant submits copies of two loan applications at issue in this case, and in opposition, Plaintiff submits an exhibit with a series of messages between unidentified individuals regarding Plaintiff’s termination. See, Dkt. Entry Nos. 19-2, 19-3, and 20-4. Where a party seeks to introduce material extrinsic to the pleadings on a motion to dismiss, the court “must either exclude the additional material and decide the motion on the pleadings alone or convert the motion to one for summary judgment and afford all parties the opportunity to present supporting material.” United States Fire Ins. Co. v. United Limousine Serv., Inc., 303 F. Supp.2d 432, 442 (S.D.N.Y. 2004) (internal quotation marks and citations omitted); Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir. 2000) (citation omitted). Defendant contends that the Court can consider the loan applications without converting its motion to one for summary judgment because they are integral to the Amended Complaint, since Plaintiff had notice of these applications and is likely in possession thereof. See, Def. Mem. at 5, n.5. A document is not considered integral to a complaint, such that a court may consider it without converting a motion to dismiss to one for summary judgment, simply because the plaintiff had notice or possession of the document. See, Glob. Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006). Rather, for a document to be considered integral to the complaint, the plaintiff must have relied “on the terms and effect of the document in drafting the complaint.” Id. (internal quotation marks, alteration, and citation omitted). While Plaintiff mentions the existence of these loan applications, he does not otherwise rely on them. See, generally, Am. Compl. Accordingly, the Court does not consider the loan applications integral to the Amended Complaint. Notably, neither party indicates that they seek to convert Defendant’s motion to dismiss to a motion for summary judgment. For all these reasons the Court will not consider the extrinsic documents submitted by the parties. See, United States Fire Ins. Co., 303 F. Supp.2d at 442 (declining to convert motion to dismiss to motion for summary judgment and, accordingly, not considering material extrinsic to the pleadings). II. Relevant Facts On or about February 22, 2011, Plaintiff began working for Defendant as a mortgage loan officer. Am. Compl. at 5. As a mortgage loan officer, Plaintiff was responsible for overseeing mortgage loan applications. Id. at 6. During Plaintiff’s employment, his brother, Yury Gokhberg (“Yury”), also worked for Defendant as a mortgage loan officer. Id. at 7. In early 2015, Yury submitted to Defendant two separate mortgage loan applications from two applicants who sought loans to purchase two separate properties. Id. at

8-12. The applicants were married to each other. Id. at 9. On or about March 19, 2015, Defendant issued separate mortgage loan commitment letters to each applicant, which provided terms for primary residence property loans. Id. at

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 05, 2024
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›