Opinion
2012-10-23
Karien PICHARDO, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants–Respondents, Robin Johnson, et al., Defendants.
Ballon Stoll Bader & Nadler, P.C., New York (Rudy A. Dermesropian of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
Ballon Stoll Bader & Nadler, P.C., New York (Rudy A. Dermesropian of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
TOM, J.P., ANDRIAS, SAXE, DeGRASSE, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 10, 2011, which granted defendants New York City Department of Education (DOE), Joel I. Klein, and Michelle Lloyd–Bey's motion to dismiss the complaint as against them as time-barred, unanimously affirmed, without costs.
Plaintiff failed to establish that defendants' conduct contributed to her delay in commencing this action and that therefore defendants should be estopped from asserting the defense of the one-year statute of limitations applicable to her non-tort claims of gender and disability discrimination, sexual harassment, retaliation, and breach of contract ( see Nowinski v. City of New York, 189 A.D.2d 674, 592 N.Y.S.2d 369 [1st Dept. 1993] ). Moreover, she failed to establish due diligence on her part in ascertaining the limitations period for commencing the action ( see Walker v. New York City Health & Hosps. Corp., 36 A.D.3d 509, 828 N.Y.S.2d 365 [1st Dept. 2007] ). Unlike her non-tort claims, which accrued on the date of her termination as a probationary teacher, plaintiff's negligent supervision and hiring and negligent infliction of emotional distress claims accrued on the date of the last alleged underlying act ( seeEducation Law § 3813[2]; General Municipal Law § 50–i; Jarvis v. Nation of Islam, 251 A.D.2d 116, 674 N.Y.S.2d 324 [1st Dept. 1998];Dana v. Oak Park Marina, 230 A.D.2d 204, 210–211, 660 N.Y.S.2d 906 [4th Dept. 1997] ). The last date on which it may be reasonably inferred from the complaint that an act of harassment occurred was April 24, 2009. Since plaintiff did not commence this action until August 12, 2010, her tort claims are barred by the one–year–and–90–day statute of limitations. Plaintiff's assertion in her appellate brief that the alleged harassment continued until the date she was terminated is not supported in the record. We note that, in opposition to defendants' motion, plaintiff failed to avail herself of the opportunity to submit an affidavit or other evidence to amplify the allegations in her complaint and establish the timeliness of her claims. We have considered plaintiff's remaining contentions and find them unavailing.