Opinion
155938/2015
01-17-2017
Rebecca Mentor, Plaintiff, v. Department of Education of the City Of New York and BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendants.
For Plaintiff Natalia Kapitonova Esq. Stewart Lee Karlin Law Group, PC 111 John Street, New York, NY 10038 For Defendants Ryan T. Mangum, Assistant Corporation Counsel New York City Law Department 100 Church Street, New York, NY 10007
For Plaintiff Natalia Kapitonova Esq. Stewart Lee Karlin Law Group, PC 111 John Street, New York, NY 10038 For Defendants Ryan T. Mangum, Assistant Corporation Counsel New York City Law Department 100 Church Street, New York, NY 10007 billings, J.
Defendants move to dismiss the complaint based on the applicable statute of limitations, which defendants claim is the four months provided by C.P.L.R. § 217(1), and which therefore would bar this action. C.P.L.R. § 3211(a)(5). Plaintiff applied to defendants for a substitute teaching license, which they denied based on her prior criminal conviction for petit larceny. They notified her of the denial November 17, 2014. She commenced this action June 12, 2015, claiming defendants unlawfully discriminated against her by considering her prior criminal conviction in determining her application, as prohibited by the New York State and New York City Human Rights Laws, NY Exec. Law § 296(15); N.Y.C. Admin. Code § 8-107(10)(a), to which a statute of limitations of three years ordinarily applies. C.P.L.R. § 214(2); Vig v. New York Hairspray Co., L.P., 93 AD3d 565, 566 (1st Dep't 2012); Cordone v. Wilens & Baker, P.C., 286 AD2d 597, 598 (1st Dep't 2001). I. PLAINTIFF'S CLAIMS UNDER THE NYCHRL AND NYSHRL
Plaintiff now discontinues her claim under the New York City Human Rights Law (NYCHRL), because New York City Administrative Code § 8-107(10)(b) explicitly provides that a claim against a governmental agency of discrimination based on a prior criminal conviction must be pursued via C.P.L.R. Article 78, to which C.P.L.R. § 217(1) applies. The New York State Human Rights Law (NYSHRL), NY Exec. Law §§ 296-97, however, includes no such provision. New York Executive Law § 297(9) applies to all the NYSHRL's prohibitions against discrimination: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages." II. DEFENDANTS' GROUNDS FOR DISMISSAL OF PLAINTIFF'S CLAIM UNDER THE NYSHRL
Defendants rely on New York City Tr. Auth. v. State Human Rights Appeal Bd., 97 AD2d 825, 825 (2d Dep't 1983), holding that a proceeding pursuant to C.P.L.R. Article 78 is the exclusive remedy for a claim against a governmental agency of discrimination based on a prior criminal conviction, similarly to Administrative Code § 8-107(10)(b)'s explicit limitation. That decision, however, adjudicated a proceeding commenced by a petitioner employer to review an administrative determination by a governmental agency, the New York State Division of Human Rights, that petitioner had discriminated against an employee, a proceeding necessarily commenced pursuant to C.P.L.R. Article 78. C.P.L.R. § 7803(3) and (4). Here, plaintiff employee claims directly against an employer that it has discriminated against her. No governmental agency, only the court, is involved in determining her claim. The employer sued simply happens to be a governmental agency. Although the same prohibition against discrimination, Executive Law § 296(15), may have applied to the petitioner's conduct in the proceeding on which defendants rely, the procedural vehicles are entirely different.
In short, New York City Tr. Auth. v. State Human Rights Appeal Bd., 97 AD2d at 825, was not a claim against a governmental agency of discrimination based on a prior criminal conviction such as Administrative Code § 8-107(10)(b) limits to proceedings pursuant to C.P.L.R. Article 78. Therefore any interpretation of C.P.L.R. Article 78's application to such an "action in any court of appropriate jurisdiction for damages," NY Exec. Law § 297(9), is only dictum.
Significantly, after the Appellate Division, Second Department, decision on which defendants rely, the Court of Appeals made clear that the statute of limitations applicable to any civil action against a governmental agency under the NYSHRL, like this action, is specifically not the four months limitation in C.P.L.R. § 217(1), see Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d 442, 444-45 (1984), but is the three years limitation in C.P.L.R. § 214(2). Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 446-47; Cahill v. State of NY Stony Brook Univ. Hosp., 139 AD3d 779, 780 (2d Dep't 2016); Bistrisky v. New York State Dept. of Correctional Servs., 23 AD3d 866, 867 (3d Dep't 2005). Consequently, no subsequent appellate decision has followed the dictum in New York City Tr. Auth. v. State Human Rights Appeal Bd., 97 AD2d at 825. E.g., Cahill v. State of NY Stony Brook Univ. Hosp., 139 AD3d at 780. III. THE REMEDIES UNDER THE NYSHRL
Although Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 447, was not a discrimination claim based on a prior conviction, the Court of Appeals emphasized that no governmental agency defending any claim of discrimination is to be afforded more favorable treatment than any other defendant in an action under the NYSHRL, specifically through a shorter limitations period, as Administrative Code § 8-107(10)(b) affords under the NYCHRL. Bistrisky v. New York State Dept. of Correctional Servs., 23 AD3d at 867. Referring to the State Legislature, as opposed to the New York City Council that enacted Administrative Code § 8-107(10)(b), the Court of Appeals interpreted the NYSHRL: "We cannot discern any intent on the part of the Legislature to subject the injured person to a shorter limitations period when the wrong was committed by the State." Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 448.
The Court of Appeals also distinguished the administrative complaint that an employee may elect to file seeking a determination by the State Division of Human Rights that an employer has discriminated against the employee, as occurred in New York City Tr. Auth. v. State Human Rights Appeal Bd., 97 AD2d at 825, from which the employee, rather than the employer there, may seek review in a proceeding pursuant to C.P.L.R. Article 78. C.P.L.R. § 7803(4). Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 445-46. If the employee elects this remedy, then it is exclusive, but Executive Law § 297(9) also provides a separate exclusive remedy: a "cause of action 'in any court of appropriate jurisdiction for damages,'" which plaintiff elected here. Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 445-46 (quoting NY Exec. Law § 297(9)). See, e.g., NY Exec. Law §§ 297(9), 300; Freudenthal v. County of Nassau, 99 NY2d 285, 290 (2003); Marine Midland Bank v. New York State Div. of Human Rights, 75 NY2d 240, 244-45 (1989); Benjamin v. New York City Dept. of Health, 57 AD3d 403, 404 (1st Dep't 2008); Universal Packaging Corp. v. New York State Div. of Human Rights, 270 AD2d 586, 587 & n. (3d Dep't 2000). IV. THE REMEDIES UNDER THE CORRECTION LAW
Finally, an employee also may claim under New York Correction Law §§ 752-53, which prohibit the denial of employment because of a criminal conviction except under specified circumstances and require consideration of specified factors in determining whether the exceptional circumstances apply. When a governmental agency has denied employment in violation of Correction Law §§ 752-53, the exclusive means for enforcing these provisions is by a proceeding pursuant to C.P.L.R. Article 78 against the governmental employer. NY Correct. Law § 755(1). This remedy contrasts with the exclusive remedy delineated against a private employer that has denied employment in violation of Correction Law §§ 752-53: an administrative complaint to the State Division of Human Rights or the New York City Commission on Human Rights. NY Correct. Law § 755(2). The Correction Law does not permit a plenary action against private or governmental employers. V. CONCLUSION
Plaintiff here seeks to enforce Executive Law § 296(15) and sues pursuant to § 297(9), which permits a plenary action against both private and governmental employers. While Executive Law § 296(15) prohibits "any person, agency, . . . including the state and any political subdivision thereof," from denying employment because of a criminal conviction in violation of the Correction Law's substantive provisions in §§ 752-53, nowhere does the Executive Law refer to the procedural enforcement mechanisms in § 755. Therefore Executive Law § 297(9) is the applicable procedural enforcement mechanism invoked by plaintiff in this action for violation of Executive Law § 296(15).
In turn, C.P.L.R. § 214(2) is the statute of limitations applicable to this action, under which the action is timely. Koerner v. State of NY, Pilgrim Psychiatric Ctr., 62 NY2d at 446-47; Cahill v. State of NY Stony Brook Univ. Hosp., 139 AD3d at 780; Bistrisky v. New York State Dept. of Correctional Servs., 23 AD3d at 867. Therefore the court denies defendants' motion to dismiss plaintiff's claim under the NYSHRL based on the applicable statute of limitations. C.P.L.R. § 3211(a)(5). Upon the parties' consent, the court discontinues her claim under the NYCHRL. C.P.L.R. § 3217(a) and (b). Within 20 days after service of this order with notice of entry, defendants shall serve and file an answer to the complaint insofar as it claims defendants' violation of the NYSHRL. See C.P.L.R. §§ 3012(a), 3211(f). This decision constitutes the court's order, DATED: January 17, 2017 _____________________________ LUCY BILLINGS, J.S.C.