YEGORYAN v. BB MEDICAL DERMATOLOGY (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Julian Schreibman, J.), entered May 8, 2024 in Ulster County, which, among other things, denied plaintiff's motion to amend the complaint.

In October 2020, plaintiff became employed as a physician assistant for defendants and was subsequently diagnosed with breast cancer.  In September 2021, plaintiff informed defendant Brooke Bair about her diagnosis and, soon thereafter, defendants terminated plaintiff's employment.  In April 2022, plaintiff filed a summons and complaint against defendants alleging, among other things, discrimination on the basis of her cancer diagnosis, a disability under the Human Rights Law (see Executive Law § 290 et seq.).  In June 2022, defendants, through their counsel, sent a hold letter to plaintiff's current employer informing the employer of the litigation and requesting that the employer preserve any evidence related to the matter.  Plaintiff then filed a “[f]irst [a]mended [v]erified [c]omplaint,” as of right, to include an additional cause of action for retaliation pursuant to Executive Law § 296(7), alleging that defendants had retaliated against plaintiff for commencing the instant action by sending the hold letter to plaintiff's employer.  Defendants responded by filing a motion to dismiss the complaint in its entirety or, in the alternative, to strike the retaliation allegations as added by way of the first amended complaint.  Supreme Court ultimately denied the motion to dismiss the complaint in its entirety as well as the request to strike the retaliation allegations.¹

In September 2023, plaintiff filed a motion to amend her first amended verified complaint seeking to add a cause of action against defendants’ counsel, Ellen Holloman, in her individual capacity, for aiding and abetting defendants’ retaliatory conduct by drafting, signing and sending the hold letter.  Soon thereafter, defendants timely filed an answer to plaintiff's first amended verified complaint and asserted counterclaims alleging that (1) plaintiff breached her contract with defendant BB Medical & Dermatology P.C.;  and (2) that plaintiff intentionally inflicted emotional distress (hereinafter IIED) on Bair when plaintiff filed the first amended verified complaint.  The next day, defendants filed a cross-motion seeking sanctions and counsel fees for plaintiff's frivolous motion to amend seeking to add a cause of action against Holloman.  Plaintiff responded with a motion seeking counsel fees and costs incurred in opposing defendants’ “frivolous” cross-motion.

Plaintiff then filed another motion seeking, among other things, dismissal of Bair's IIED counterclaim and to further amend her first amended verified complaint to add causes of action for retaliation based upon allegedly frivolous breach of contract and IIED counterclaims (hereinafter the instant motion).  Defendants, thereafter, amended their answer to withdraw the IIED counterclaim and further opposed plaintiff's motion to amend its complaint.  After oral argument on both parties’ motions, Supreme Court denied all motions in their entirety.²  Plaintiff appeals.³

Plaintiff's contentions on appeal relate solely to the denial of the instant motion to add causes of action alleging that defendants retaliated against plaintiff by filing frivolous breach of contract and IIED counterclaims.  As relevant here, “CPLR 3025(b) states that a party may amend his or her pleading at any time by leave of court, and that such leave shall be freely given” (Favourite Ltd. v. Cico, 42 N.Y.3d 250, 256, 218 N.Y.S.3d 540, 243 N.E.3d 494 [2024] [internal quotation marks, brackets and ellipsis omitted]).  “The rule on a motion for leave to amend a pleading is that, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Walden v. Varricchio, 195 A.D.3d 1111, 1113, 149 N.Y.S.3d 351 [3d Dept. 2021] [internal quotation marks and citations omitted]).  “The decision to grant leave to amend a complaint is within the trial court's sound discretion and will not be disturbed absent an abuse of that discretion” (Mohammed v. New York State Professional Fire Fighters Assn., Inc., 209 A.D.3d 1151, 1152, 176 N.Y.S.3d 364 [3d Dept. 2022] [internal quotation marks and citations omitted];  see Petry v. Gillon, 199 A.D.3d 1277, 1280, 159 N.Y.S.3d 165 [3d Dept. 2021]).  As relevant here, in order to establish a retaliation claim, “the plaintiff must show that (1) they have engaged in protected activity, (2) the defendant was aware that the plaintiff participated in the protected activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) there is a causal connection between the protected activity and the adverse action” (Matter of Clifton Park Apts., LLC v. New York State Div. of Human Rights, 41 N.Y.3d 326, 331, 210 N.Y.S.3d 721, 234 N.E.3d 337 [2024] [internal quotation marks and citation omitted];  see Mikesh v. County of Ulster, 237 A.D.3d 1285, 1290, 230 N.Y.S.3d 808 [3d Dept. 2025]).

Initially, we agree with plaintiff that Supreme Court erred in finding that portion of the instant motion seeking to add a cause of action for retaliation to be moot based upon defendants’ withdrawal of their IIED counterclaim.  Indeed, the retaliatory action alleged by plaintiff is the filing of the allegedly frivolous counterclaim, thus subsequent withdrawal would not, in and of itself, render moot the cause of action which plaintiff seeks to add (see generally Matter of Clifton Park Apts., LLC v. New York State Div. of Human Rights, 41 N.Y.3d at 333–334, 210 N.Y.S.3d 721, 234 N.E.3d 337;  Hollandale Apts. & Health Club, LLC v. Bonesteel, 173 A.D.3d 55, 69, 100 N.Y.S.3d 711 [3d Dept. 2019]).  As such, we address the merits as to the instant motion seeking to add causes of action based upon both the IIED and breach of contract counterclaims.

As relevant here, “anti-retaliation provisions are designed principally to deal with retaliatory conduct that occurs outside the judicial system” (Klein v. Town & Country Fine Jewelry Group, 283 A.D.2d 368, 369, 725 N.Y.S.2d 42 [1st Dept. 2001] [internal quotation marks, ellipsis and citation omitted]).  To that end, “[a]nti-retaliation provisions prevent employers from intimidating plaintiffs thereby discouraging plaintiffs from seeking legal remedies.  Once a lawsuit has been filed, courts have the tools to deal with counterclaims that are truly retaliatory or made in bad faith” (Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1061 n. 53 [D. Minn. 1991]).  In fact, “[i]t is the rare case that the filing of a counterclaim can serve as the basis for a retaliation claim” (Klein v. Town & Country Fine Jewelry Group, 283 A.D.2d at 369, 725 N.Y.S.2d 42;  see Arevalo v. Burg, 129 A.D.3d 417, 417, 10 N.Y.S.3d 231 [1st Dept. 2015]).  Here, given that there is “no evidence ․ to indicate nor any reason to believe that the interposition of the counterclaim[s] in any way chilled plaintiff's exercise of her rights, her claim of retaliation should not be entertained” (Klein v. Town & Country Fine Jewelry Group, 283 A.D.2d at 369, 725 N.Y.S.2d 42;  see Arevalo v. Burg, 129 A.D.3d at 417, 10 N.Y.S.3d 231).  Moreover, plaintiff's proposed amendments are “palpably insufficient” as she asserts only conclusory allegations that defendants filed these counterclaims because of retaliatory animus toward plaintiff (NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc., 156 A.D.3d 99, 102, 64 N.Y.S.3d 730 [3d Dept. 2017];  see e.g. Anandaraja v. Icahn Sch. of Medicine at Mount Sinai, 227 A.D.3d 533, 536, 212 N.Y.S.3d 60 [1st Dept. 2024];  Campbell v. New York City Dept. of Educ., 200 A.D.3d 488, 489, 160 N.Y.S.3d 12 [1st Dept. 2021];  Whitfield–Ortiz v. Department of Educ. of City of N.Y., 116 A.D.3d 580, 581, 984 N.Y.S.2d 327 [1st Dept. 2014]).  Accordingly, because the proposed amendments are palpably insufficient and devoid of merit, Supreme Court did not abuse its discretion in denying the instant motion (see Arevalo v. Burg, 129 A.D.3d at 417, 10 N.Y.S.3d 231;  Klein v. Town & Country Fine Jewelry Group, 283 A.D.2d at 369, 725 N.Y.S.2d 42).  We have reviewed plaintiff's remaining contentions and find them lacking in merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Though not relevant to plaintiff's appeal, Supreme Court did dismiss a cause of action based upon an alleged failure to provide accurate wage statements pursuant to the Labor Law.

2.   Prior to oral arguments, plaintiff filed a motion for summary judgment.  Although Supreme Court did not intend to consider plaintiff's motion for summary judgment at oral argument and rather schedule a later date, in its decision and order Supreme Court determined that oral arguments were not necessary and denied the motion for summary judgment.

3.   Defendants have not filed a brief.

Pritzker, J.P.

Fisher, McShan, Powers and Mackey, JJ., concur.