Disability Discrimination & Retaliation Claims Dismissed on “Procedural” Grounds

In Vitti v Macy’s Inc., No. 152875/2018, 2018 WL 5787308, 2018 N.Y. Slip Op. 32809(U) (Sup Ct, New York County Nov. 05, 2018), the court granted defendant’s motion to dismiss plaintiff’s claims for disability discrimination and retaliation under the New York State and City Human Rights Laws. This case was not decided based on the merits, but rather on the failure to comply with procedural rules and deadlines.

Initially, plaintiff had sued in federal court, which dismissed her federal (Americans with Disabilities Act) claim, and declined to exercise supplemental jurisdiction over plaintiff’s State and City Human Rights Law claims. Plaintiff commenced her state lawsuit six months after the dismissal of her federal lawsuit, but did not serve the defendants with the complaint until five weeks after commencing the action.

The court granted defendants’ motion to dismiss on two grounds.

First, plaintiff failed to timely file her opposition papers in accordance with the CPLR and the court’s rules. Judge Perry wrote:

Defendants are correct that the court cannot consider plaintiff’s opposition to the motion to dismiss, because the papers were not timely filed in accordance with the provisions of CPLR 2214 (NYSCEF Doc. Nos. 24; 25; 36; and 39). A notice of motion that is served at least 16 days before the return day, as was the case here, may demand that “[a]nswering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before” that return day (CPLR 2214 [b]). (see generally Siegel, NY Prac § 247 [4th ed]). Moreover, this court’s Part rules reiterate the importance of compliance with the time limits set forth in the CPLR, noting that “Timely interposition of all papers in accordance with the CPLR is required, as the Court will not consider the merits of any papers, including opposition, . . . which appear to have been interposed in an untimely or otherwise inappropriate manner.”

Plaintiff failed to comply with these deadlines, and failed to offer a valid excuse for her untimely service of her opposition to defendant’s motion to dismiss – specifically, she served her papers one, and not seven, days, before the motion’s return date.

Second, even if plaintiff had timely filed opposition to defendants’ motions (and thus could be considered by the court), her claims would be dismissed as time-barred under CPLR 205(a).

That section provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Applying the law, the court held:

The record demonstrates that plaintiff filed this action on March 29, 2018 but she did not serve the defendants until May 3, 2018, a full five weeks later. The six-month period within which plaintiff must have served defendants in this action under CPLR section 205(a) began to run on September 29, 2017, upon the entry of the order dismissing the prior federal court action. As the affidavits of service make clear, plaintiff did not serve defendants until May 3, 2018, five weeks after the six-month extension period allowed by CPLR 205(a), and as such, her claims are time barred.

In sum, this case underscores the importance of complying with statutory and court rules, particularly as to deadlines.