Opinion
102603/10.
Decided July 22, 2011.
Ralph Giordano, Plaintiff Pro Se.
Attorney General of the State of New York, Attorney for Defendants.
The following papers numbered 1 to 5 were marked fully submitted on this 20th day of May, 2011:
Papers Numbered Pro Se
Notice of Motion and Memorandum of Law by Defendant(s) with supporting Papers Exhibits (dated February 7, 2011) 1,2 Affirmation and Reply Memorandum of Law by Defendant(s) (dated May 17, 2011) 3,4 Memorandum of Law by Plaintiff, 5Upon the foregoing papers, the motion of defendants to dismiss the complaint pursuant to CPLR 3211 (a) (5) is granted, and all other requested relief is denied.
Plaintiff brought this action in November, 2010 against the College of Staten Island ("CSI"), City University of New York ("CUNY") and State of New York alleging claims of age and national origin discrimination in violation of the New York State Human Rights Law, Executive Law § 290 et. seq. and for retaliation for whistle blowing in violation of CSL § 75-6. (Compl ¶¶ 2-16). Defendants filed a motion to dismiss the Complaint on February 7, 2011 pursuant to CPLR 3211(a)(5) and (7) on that grounds that plaintiff's claims were barred by the applicable statutes of limitations and failed to state a cause of action, among other relief. In opposition, plaintiff served an amended complaint as of right, with a Memorandum of Law in Opposition to Defendants' motion to Dismiss, on or About May 17, 2011. (the "Amended Complaint")
In the Amended Complaint, plaintiff only maintained his claim under CSL § 75-b against CUNY and the State of New York.
In its motion, defendants request: (1) that the motion be amended to reflect and request relief regarding the amended complaint asserting the same legal arguments; (2) that the claim be dismissed pursuant to CPLR 3211(a)(5) on the ground that plaintiff's claims were barred by the applicable statutes of limitations; (3) that the claim be dismissed pursuant to CPLR 3211(a)(7) on the ground that plaintiff's claim failed to state a cause of action.
In the interests of justice, the motion is amended to reflect and request relief regarding the amended complaint asserting the same legal arguments.
Consequently this court will address defendants' claim that the claim be dismissed pursuant to CPLR 3211(a)(5) on the ground that plaintiff's claims were barred by the applicable statute of limitations. Defendant claims that the latest alleged adverse personnel act, which plaintiff cites to in his complaint, occurred in January 2009. Further, defendant cites that a claim under CSL § 75-b must be brought within one year after the claim accrues, and thus, plaintiff's claim, being filed over one year and ten months later, is time barred.
Plaintiff in opposition does not deny that the complaint was filed untimely. Instead, plaintiff asks this Court to apply the federal doctrine of equitable tolling.
The federal doctrine of equitable tolling provides for the superceding of an expired statute of limitations where plaintiff can establish that the defendant was the cause of the delay in filing the action, the action was commenced with the statute of limitations once the plaintiff became aware of the claims, and the delay was not due to any lack of diligence on plaintiff's part. Fremont Inv. Loan v. Edwardsen , 20 Misc 3d 1114(a) (Supreme, NY County 2008). There is no recognized applicable doctrine in New York. Pipitone v. City of New York , 38 AD3d 557 , (2d Dept 2007); Fuchs v. New York Blood Center, Inc.; 275 AD2d 240 (1st Dept). Plaintiff asserts that the reason for the delay in filing his claim was due to his attorney's actions, and not his own. Plaintiff does not assert that any action of defendant preventing the filing of plaintiff's claim. Although his attorney's conduct may be a reasonable excuse on the part of plaintiff for the delay in filing, it is highly prejudicial to hold the actions of plaintiff's counsel against the defendant. Thus, with no applicable equitable concept to assist this court, defendants' motion must be granted, and plaintiff must pursue his action in another fashion.
Accordingly, it is hereby
ORDERED, the motion of defendant to dismiss the Amended Complaint pursuant to CPLR 3211 (a) (5) is granted; and it is further
ORDERED, that all other requested relief is denied; and it is further
ORDERED, that the Clerk of the Court shall enter judgment accordingly.