Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Upon reading the foregoing cited papers and after oral arguments held April 9, 2025, defendant's motion to dismiss the complaint against Kingsborough Community College and Stuart Parker is determined as follows:

Plaintiff Linda Tribuzio commenced this action alleging a violation of New York Labor Law against defendants Kingsborough Community College ("Kingsborough") and Dr. Stuart Parker ("Dr. Parker") by filing of a Summons and Complaint on July 22, 2024. Instead of filing an answer, defendant filed the instant motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action.

Plaintiff was employed as an Adjunct Assistant Professor at Kingsborough within the Behavioral Sciences Department. Plaintiff was also a Research Associate on the Computing Integrated Teacher Education ("CITE") Program. Neither party defined the CITE Initiative.

Dr. Parker serves as the Chair of the Behavioral Sciences Department at Kingsborough. Kingsborough is a community college within the City University of New York ("CUNY") [*2]system. Plaintiff is no longer employed by Kingsborough, which is the subject of this litigation.

In the complaint, plaintiff alleges that she was terminated after raising concerns about non-payment of wages for her work in the CITE Initiative. For a period of five-months, plaintiff brought the nonpayment issue to Dr. Parker, Kingsborough Department of Human Resources, and Dr. Aankit Patel—the CITE program Director.

On or about June 13, 2023, Dr. Parker informed plaintiff that due to her complaints about nonpayment of wages, that he would preclude plaintiff from continuing to participate in the CITE program. Thereafter, Dr. Patel confirmed Dr. Parker's decision in a written communication, which stated that Dr. Patel "must recognize Dr. Parker's decision to bar plaintiff from further work with CITE" (See Complaint ¶ 27). Thereafter, in his capacity as Chair of the Behavioral Sciences Department, Dr. Parker did not renew plaintiff's position as an adjunct faculty professor for the 2023-2024 academic year. Thus, plaintiff's preclusion from participation in the CITE program and subsequent removal from her position constituted retaliatory actions taken by Dr. Parker and, by its acquiescence, his actions were imputed to Kingsborough.

Defendants in their motion argue that plaintiff cannot establish any predicate Labor Law violation based on the facts set forth in the complaint. Moreover, plaintiff is exempt from New York Labor Law protections since she is a professional employee. Additionally, plaintiff is barred from bringing a retaliation claim against Kingsborough, as Kingsborough is a New York State government agency.

It is well settled that, in considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Cabrera v Deadwood Constr., Inc., 226 AD3d 743, 743—744 [2d Dept. 2024]). "When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff ' the benefit of every possible favorable inference' " (See AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005], citing Leon v. Martinez, 84 NY2d 83, 87 [1994]). Moreover, "[t]he motion must be denied if from the pleadings' four corners 'factual allegations are discerned which taken together manifest any cause of action cognizable at law.' " (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002], quoting Polonetsky v Better Homes Depot, Inc., 97 NY2d 46, 54 [2001]; Frank v. DaimlerChrysler Corp., 292 AD2d 118 [1st Dept. 2002] [court's role is limited to defining whether a cause of action was stated in complaint]).

New York's pleading standard requires that statements be "sufficiently particular" to give the court and parties notice of the occurrences intended to be proven and the material elements of each cause of action (CPLR 3013). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005]). It is important to note that, "on a motion to dismiss the court merely examines the adequacy of the pleadings" rather than assessing the sufficiency of the parties' evidence. (Davis v Boeheim, 24 NY3d 262, 268 [2014]).

Labor Law § 215 prohibits retaliating against an employee for complaining about a violation of the Labor Law or order of the Commissioner of Labor. Labor Law § 215(1) [*3]provides, in relevant part:

"1. (a) No employer . . . or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer . . . that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner (ii) because such employer or person believes that such employee has made a complaint to his or her employer . . . . (iii) because such employee has caused to be instituted or is about to institute a proceeding under or related to this chapter. . .

An employee complaint or other communication need not make explicit reference to any section or provision of this chapter to trigger the protections of this section.

* * * * * *

(c) This section shall not apply to employees of the state or any municipal subdivisions or departments thereof" (Labor Law § 215[1][a],[c]).

To establish a claim of retaliation under Labor Law § 215, plaintiff must allege: (1) participation in protected activity known to defendant; (2) an employment action disadvantaging plaintiff; and (3) a causal connection between the protected activity and the adverse action (Dilugio v Liberty Mutual Grp., Inc., 230 AD3d 643,645 [2d Dept 2024]); Higueros v. New York State Catholic Health Plan, Inc., 526 FSupp2d 342, 347 [EDNY 2007] [pleadings must adequately show that while employed, plaintiff complained that employer violated New York Labor Law, and such complaint resulted in termination or otherwise being penalized, discriminated against, or subjected to adverse employment action].

Defendants' reliance on Epifani v Johnson (65 AD3d 224, 226 [2d Dept 2009] [abrogated by Labor Law § 215 as stated in Reyes v Seaqua Delicatessen (234 AD3d 88, 94-95 [2d Dept 2024])]) is unavailing. In Reyes v Seaqua Delicatessen, Inc. (234 AD3d 88, 93-96 [2d Dept. 2024]), the Second Department determined that Epifani had been effectively overruled by the Court of Appeals decision in Webb-Weber v Community Action for Human Services, Inc. 23 NY3d 448 [2014].

In Reyes, plaintiffs brought claims against their former employer under Labor Law § 215 (234 AD3d at 88). The employer-defendant moved to dismiss for failure to state a cause of action under CPLR 3211(a)(7), on the grounds that plaintiffs had "failed to plead that their employment was terminated because they complained . . . about a violation of the New York Labor Law" (Reyes, 234 AD3d at 91). However, in Webb-Weber, the Court of Appeals held "for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged . . . " (23 NY3d at 453).

Webb-Weber referred specifically to Appellate Division cases such as Epifani, noting that "[t]o the extent that Appellate Division authority can be read as requiring a plaintiff to plead the actual law, rule or regulation the employer violated, it should no longer be followed for that proposition" (Webb-Weber, 23 NY3d at 453). Therefore, the Reyes court determined that Epifani had been effectively "overruled by the Court of Appeals, and it was further abrogated by the amendment to Labor Law § 215" (Reyes, 234 AD3d at 96; see Webb-Weber v Community Action for Human Services, Inc., 23 NY3d 448 [2014]; see also L. 2010, ch. 564, § 10).^[FN1]

It is sufficient that plaintiff pleaded the "particular activities, policies, or practices" in which defendant allegedly engaged (Webb-Weber, 23 NY3d at 453). Namely, plaintiff claims that defendant Dr. Parker told her that due to her complaints, she would be precluded from future participation in the CITE program. Subsequently, at the direction of Dr. Parker, plaintiff was not invited to participate in the CITE program (Phillips v. Bowen, 278 F.3d 103, 109 [2nd Cir 2002] ["[a]dverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand"]).

Thus, defendant's allegation that plaintiff's complaint failed to state a claim is without merit. Defendants do not challenge that termination under these facts qualifies as an adverse employment action under Labor Law § 215. Rather, defendants argue that plaintiff is barred from bringing this action because plaintiff falls within the "professional" exemption and that Kingsborough Community College is a government agency.

Accordingly, plaintiff has met the specific pleading standards for a claim brought under Labor Law § 215.

A professional exception applies to matters concerning minimum wage disputes and orders issued by the Department of Labor (12 NYCRR ch II, subch B ["Minimum Wage Orders"]). The New York City Rules and Regulations define a professional to be, in pertinent part:

"(iii) Professional. Work in a bona fide . . . professional capacity means work by an individual:

(a) whose primary duty consists of the performance of work: requiring knowledge of an advanced type in a field of science; . . . and the result of which depends primarily on the invention, imagination or talent of the employee; and

(b) whose work requires the consistent exercise of discretion and judgment in its performance; or

(c) whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time" (12 NYCRR § 142-2.14 [c][4][iii]).

Effectively, the exemption may be read to mean that "any person employed in a bona fide professional capacity may not maintain a minimum wage . . . violation" (Volpe v American Language Communication Center, Inc., 2021 NY Misc. LEXIS 47820, *6 [Sup Ct, New York County 2021]).

Here, plaintiff does not allege minimum wage violations or unauthorized deductions from wages pursuant to Labor Law § 193. Her claims are based on retaliation for complaining about nonpayment of wages (See Plaintiff Complaint ¶24). However, whether plaintiff falls under any professional exemption exclusion is premature pending completion of discovery.

Under Labor Law article 6 (§§ 190 et seq.), an "employer . . . shall not include a [*4]governmental agency" (Labor Law § 190[3]). "In 1979, the State Legislature reorganized the existing public senior and community colleges of the City University as an independent corporation known as the 'City University of New York' " (Perez v Giuliani, 182 Misc 2d 398, 402 [Sup Ct, New York County 1999]). "CUNY is a State-created independent entity, not an agency or subdivision of City government" (Id. at 405). Kingsborough, defined as a community college within the CUNY corporation, is not a governmental agency (see Education Law §§ 6202[4], 6301[2]). Further, CUNY is independently governed and administered by its board of trustees (see Perez v Giuliani, 182 Misc 2d 398, 402 [Sup Ct, New York County 1999]).

Additionally, Labor Law § 215 "shall not apply to employees of the state or any municipal subdivisions or departments thereof" (Labor Law § 215[1][c]). The question is then whether Kingsborough is to be considered part of the "state," which is notably "a case-by-case determination" (Apollon, 246 AD2d at 135). Apollon v Giuliani, read in conjunction with Clissuras (359 F.3d 79 [2d Cir 2004]), establishes a dividing line between CUNY senior and community colleges: the former are treated as state agencies, and the latter treated as city agencies (see Tongring v Bronx Community Coll. of the City of New York Sys., 2014 WL 463616, *3 n 2 [SDNY 2014]).

In Clissuras v City of New York (359 F3d 79 [2d Cir 2004]), former CUNY employees brought suit against CUNY, alleging constitutional and state law violations. The Second Circuit was thus prompted to consider whether a CUNY senior college was entitled to Eleventh Amendment sovereign immunity as an "arm of the state" (Id. at 81). Clissuras emphasized two factors in making this determination: "(1) 'the extent to which the state would be responsible for satisfying any judgment that might be entered against the defendant entity,' and (2) 'the degree of supervision exercised by the state over the defendant entity' " (Id. at 82, quoting Pikulin v. CUNY, 176 F3d 598, 600 [2d Cir 1999] [per curiam]; see also Rosa R. v. Connelly, 889 F2d 435, 437 (2d Cir 1989), cert denied 496 US 941 [1990] [Courts must "examine the degree to which the entity is supervised by the state and the entity's source of funds for satisfying judgments rendered against it" to determine whether defendant is an arm of the state enjoying Eleventh Amendment immunity"]); see also Education Law § 6205 [2][e] ["The city of New York shall indemnify and save harmless employees of the community colleges of the city university in the amount of any judgment obtained against such employees in any state or federal court . . ."]). The Second Circuit determined that CUNY senior colleges were an arm of the state because, first, "the state is responsible for paying money judgments entered against senior colleges," and second, " 'ultimate control over how CUNY is governed and operated' rests with the state" (Id., quoting Becker v City Univ. of New York, 94 FSupp2d 487, 490 [SDNY 2000] [referring to the CUNY senior colleges]).

In contrast, in Apollon, the Appellate Division, First Department determined that a community college under the CUNY umbrella was not a state agency, considering similar factors (246 AD2d at 134-135). The Apollon court focused on ultimate responsibility for money judgments, finding that "the City defends and indemnifies community college employees in tort or civil rights cases, while the State defends and indemnifies senior college employees in the same circumstances" (Id. at 135). Further, the "degree of supervision exercised by the state" over CUNY is minimal for purposes of the Clissuras analysis (359 F3d 79, 82 [2d Cir 2004]). The legislature "explicitly vested the CUNY Board with independent powers to 'govern and administer the city university' " (Perez v Giuliani, 182 Misc 2d 398, 403 [Sup Ct, New York County 1999], quoting NY Education Law § 6204[1]). "As a 'separate and distinct body corporate,' CUNY is not formally part of the State or the City" (Apollon v Giuliani, 246 AD2d at [*5]134-135, citing Education Law § 6203).

Therefore, since Kingsborough is a community college as defined in Education Law § 6202[4], it is not a governmental agency that would shield it from liability under Labor Law § 215. Thus, this court determines that although CUNY is an agency of the State, community colleges of CUNY are distinct from senior colleges (Encore College Bookstore, Inc. v City University of New York, 2008 WL 5231105 [Sup Ct, New York County 2008], citing Pikulkin v. CUNY, 176 F.3d 598 [2d Cir 1999]). As such, Kingsborough is to be treated as a city agency. Consequently, a cause of action in Labor Law § 215 permissible against a Kingsborough Community College.

For the reasons stated above, the Court determines that defendant's motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7) is denied.

ORDERED that defendants have thirty days from the filing and entry of this Order to serve upon defendant and file with the court and an answer.

This constitutes the decision of this Court.