Opinion
No. 2021-05330 Index No. 617543/19
12-13-2023
Joy Stewart Acala, appellant, v. Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., respondent.
Law Office of John A. Scola, PLLC, New York, NY, for appellant. Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., New York, NY (David Barmak, John Corbin Carter, and Evan M. Piercey of counsel), respondent pro se.
Law Office of John A. Scola, PLLC, New York, NY, for appellant.
Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., New York, NY (David Barmak, John Corbin Carter, and Evan M. Piercey of counsel), respondent pro se.
BETSY BARROS, J.P., FRANCESCA E. CONNOLLY, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination on the basis of national origin and disability in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated July 8, 2021. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
In December 2019, the plaintiff commenced this action against the defendant, her former employer, inter alia, to recover damages for employment discrimination on the basis of national origin and disability in violation of the New York State Human Rights Law (Executive Law § 290 et seq.; hereinafter NYSHRL) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.; hereinafter NYCHRL). Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated July 8, 2021, the Supreme Court granted the defendant's motion. The plaintiff appeals.
"A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ayers v Bloomberg, L.P., 203 A.D.3d 872, 874; see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305). "Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic" (Ayers v Bloomberg, L.P., 203 A.D.3d at 874; see Golston-Green v City of New York, 184 A.D.3d 24, 38).
"Actions alleging discrimination under the NYSHRL and NYCHRL must be commenced within three years after the alleged unlawful discriminatory practice or act of discriminatory harassment" (Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 A.D.3d 579, 580-581; see CPLR 214[2]; Administrative Code § 8-502[d]). Here, to the extent the causes of action alleging discrimination under NYSHRL and NYCHRL were predicated on acts that occurred prior to December 18, 2016, those allegations were time-barred (see Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 A.D.3d at 581; Cahill v State of N.Y. Stony Brook Univ. Hosp., 139 A.D.3d 779, 780).
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88). Here, even accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see id. at 87-88), the complaint failed to allege circumstances that took place after December 18, 2016, giving rise to an inference of discrimination on the basis of national origin or disability (see Ayers v Bloomberg, L.P., 203 A.D.3d at 874; Cahill v State of N.Y. Stony Brook Univ. Hosp., 139 A.D.3d at 781; Askin v Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622). Moreover, the plaintiff failed to allege acts sufficient to establish that similarly situated persons who did not share her national origin or alleged disabilities were treated more favorably than she (see Brown v City of New York, 188 A.D.3d 518, 519). Further, the conclusory allegations in the complaint were insufficient to state a cause of action alleging hostile work environment (see Polite v Marquis Marriot Hotel, 195 A.D.3d 965, 967).
Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
BARROS, J.P., CONNOLLY, MILLER and WOOTEN, JJ., concur.