Opinion
14339, [M-2090 & M-3090] Index No. 154732/19 Case No. 2020-04756
10-12-2021
Raimonda JARUSAUSKAITE, Plaintiff–Respondent–Appellant, v. ALMOD DIAMONDS, LTD., et al., Defendants–Appellants–Respondents, Mark Segall et al., Defendants.
Lewis Brisbois Bisgaard & Smith LLP, New York (Elior D. Shiloh of counsel), for appellants-respondents. Wallace Neel PLLC, Pearl River (Wallace Neel of counsel), for respondent-appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York (Elior D. Shiloh of counsel), for appellants-respondents.
Wallace Neel PLLC, Pearl River (Wallace Neel of counsel), for respondent-appellant.
Renwick, J.P., Kern, Oing, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about July 2, 2020, which, to the extent appealed from, denied defendants Almod Diamonds, Ltd. and Morris Gad's motion to dismiss the hostile work environment claims under the New York City and New York State Human Rights Laws as against them and granted the motion as to the intentional infliction of emotional distress claim, unanimously modified, on the law, to grant the motion as to the hostile work environment claims, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against said defendants.
Supreme Court lacks subject matter jurisdiction over the Human Rights Law claims (see Executive Law § 290[3] ; Administrative Code of City of New York § 8–101; Hoffman v. Parade Publs., 15 N.Y.3d 285, 907 N.Y.S.2d 145, 933 N.E.2d 744 [2010] ). Defendants’ alleged conduct occurred while plaintiff was "physically situated outside of New York" ( Benham v. eCommission Solutions, LLC, 118 A.D.3d 605, 606, 989 N.Y.S.2d 20 [1st Dept. 2014] ), and did not have "any impact on the terms, conditions or extent of her employment ... within the boundaries of New York" ( Hardwick v. Auriemma, 116 A.D.3d 465, 467, 983 N.Y.S.2d 509 [1st Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936031 [2014] ; see Wolf v. Imus, 170 A.D.3d 563, 564, 96 N.Y.S.3d 54 [1st Dept. 2019], lv denied 34 N.Y.3d 907, 2019 WL 6910072 [2019] ; Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 176, 806 N.Y.S.2d 553 [1st Dept. 2005], lv dismissed in part, denied in part 7 N.Y.3d 859, 824 N.Y.S.2d 597, 857 N.E.2d 1129 [2006] ; see also Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 182–183 [2d Cir. 2016] [impact on third parties is irrelevant]). "The fact that the alleged discriminatory acts ... occurred in New York is insufficient to plead impact in New York" ( Pakniat v. Moor, 192 A.D.3d 596, 597, 145 N.Y.S.3d 30 [1st Dept. 2021] ).
The one-year statute of limitations bars plaintiff's claim for intentional infliction of emotional distress; she commenced this action approximately 16 months after "the date of the commission of the last wrongful act" ( Palmeri v. Willkie Farr & Gallagher LLP, 156 A.D.3d 564, 568, 69 N.Y.S.3d 267 [1st Dept. 2017] ; see Dana v. Oak Park Marina, Inc., 230 A.D.2d 204, 210–211, 660 N.Y.S.2d 906 [4th Dept. 1997] [limitations period tolled for "continued series of extreme and outrageous acts each of which would be independently actionable"]; see CPLR 215[3] ).
Motion by defendants Almod Diamonds, Ltd. and Morris Gad to strike the first point of plaintiff's cross-appeal reply brief granted.
Cross motion by plaintiff for leave to file a sur-reply brief nunc pro tunc denied.