Opinion
12231 Index No. 159028/18 Case No. 2019–03297
10-29-2020
Hugh RAPHAEL, Plaintiff-Appellant, v. VINTAGE GRAPE & GROG, LTD., Defendant-Respondent.
Abdul Hassan Law Group, PLLC, Queens Village (Abdul Karim Hassan of counsel), for appellant. Granovsky & Sundaresh PLLC, New York (Denise Rubin Glatter of counsel), for respondent.
Abdul Hassan Law Group, PLLC, Queens Village (Abdul Karim Hassan of counsel), for appellant.
Granovsky & Sundaresh PLLC, New York (Denise Rubin Glatter of counsel), for respondent.
Renwick, J.P., Gesmer, Kern, Singh, JJ.
Appeal from order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 29, 2019, which granted defendant's motion to dismiss the complaint as time-barred, deemed an appeal from the judgment, same court and Justice, entered May 29, 2019, dismissing the complaint, unanimously affirmed, with costs.
Defendant met its initial burden of demonstrating that the time within which plaintiff had to commence the cause of action had expired (see Labor Law §§ 198[3], 663[3] ; Badzio v. Americare Certified Special Servs., Inc. , 177 A.D.3d 838, 840, 114 N.Y.S.3d 381 [2d Dept. 2019] ; Waheed v. Habib Bank Ltd. , 53 Misc.3d 137[A], 2016 WL 5922686 [N.Y. App. Term 2016] ). Specifically, defendant submitted pay stubs, W–2 records, and 2013 and 2014 NYS Fourth Quarter Return Attachments, which convincingly showed plaintiff had not worked for it in over six years prior to his instituting the current action. In response, plaintiff's opposition papers, which were only supported by allegations of plaintiff's attorney, who lacked personal knowledge of the underlying facts, did not raise a question of fact as to whether the statute of limitations was tolled (see MTGLQ Invs., LP v. Wozencraft , 172 A.D.3d 644, 645, 102 N.Y.S.3d 25 [1st Dept. 2019], lv dismissed 34 N.Y.3d 1010, 115 N.Y.S.3d 205, 138 N.E.3d 1089 [2019] ).
With regard to the plaintiff's contention that the statute of limitation should be equitably tolled, the applicable doctrine is equitable estoppel since plaintiff's complaint only alleged state causes of action, not federal ones (see Shared Communications Servs. of ESR, Inc. v. Goldman, Sachs & Co. , 38 A.D.3d 325, 325, 832 N.Y.S.2d 32 [1st Dept. 2007] ). We find that the motion court properly determined that the doctrine of equitable estoppel did not apply because, in New York, an employer does not owe a fiduciary obligation to an at-will employee (see Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon , 172 A.D.2d 254, 568 N.Y.S.2d 84 [1st Dept. 1991] ; Ingle v. Glamore Motor Sales, Inc. , 140 A.D.2d 493, 528 N.Y.S.2d 602 [2d Dept. 1988], affd 73 N.Y.2d 183, 538 N.Y.S.2d 771, 535 N.E.2d 1311 [1989] ).