Age, Sexual Orientation Discrimination Claims Should Have Been Dismissed as Time-Barred, Second Department Holds

In Peckham v. Island Park Union Free School District, 2018 WL 6332441 (App. Div. 2nd Dept. Dec. 5, 2018), the Second Department reversed the lower court’s denial of defendant’s motion for summary judgment, and held that plaintiff’s complaint – alleging age and sexual orientation discrimination under the New York State Human Rights Law – should have been dismissed as time-barred.  

The court explained: 

The defendant established that this action was time-barred, as the last alleged adverse employment action occurred more than a year prior to the commencement of the action (see CPLR 3211[a][5]; Education Law § 3813[2–b]; Matter of Amorosi v. South Colonie Ind. Cent. School Dist., 9 N.Y.3d 367, 849 N.Y.S.2d 485, 880 N.E.2d 6; Matter of Lozada v. Elmont Hook & Ladder Co. No. 1, 151 A.D.3d 860, 54 N.Y.S.3d 688). Contrary to the plaintiff’s contention, the allegations in the complaint, and in the proposed amended complaint, are insufficient to establish a viable claim of a continuing violation and, therefore, the continuing violation doctrine did not toll the running of the statute of limitations (see Herrington v. Metro–North Commuter R.R. Co., 118 A.D.3d 544, 544, 988 N.Y.S.2d 581). The continuing violation doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct

The court also held that plaintiff should not have been given an opportunity to amend her complaint.  It explained that “[w]hile leave to amend the pleadings shall be freely given …, leave should not be granted when the proposed amendment is palpably insufficient or devoid of merit.” Applying the law, the court explained that “[h]ere, the proposed amended complaint failed to sufficiently plead allegations which would support the tolling of the statute of limitations by the continuing violation doctrine[.]”