Criminal Conviction Discrimination Case Properly Dismissed as Untimely, Court Holds

In Carrington v. New York State Off. for People With Dev. Disabilities, 2019 NY Slip Op 01887 (App. Div. 4th Dept. March 15, 2019), an employment discrimination case, the court affirmed the lower court’s order granting defendant’s pre-answer motion to dismiss plaintiff’s complaint – alleging discrimination based on prior criminal conviction in violation of the New York State Human Rights Law – on statute of limitations grounds.

From the decision::

Plaintiff commenced this action seeking damages for defendant’s alleged violation of the Human Rights Law resulting from its denial of her employment application based solely on her previous criminal conviction (see Executive Law ยง 296 [15]). We reject plaintiff’s contention that Supreme Court erred in granting defendant’s pre-answer motion pursuant to CPLR 3211 (a) (5) and dismissing the complaint on the ground that it was time-barred by CPLR 214 (2). “[D]efendant had the initial burden of establishing prima facie that the time in which to sue ha[d] expired . . . , and thus was required to establish . . . when . . . plaintiff’s cause of action accrued” (Wendover Fin. Servs. v Ridgeway, 137 AD3d 1718, 1719 [4th Dept 2016] [internal quotation marks omitted]). Here, defendant demonstrated that the last discriminatory act set forth in the complaint occurred on August 30, 2013, and thus the cause of action accrued and the three-year statute of limitations for the Human Rights Law began to run on that date (see State Div. of Human Rights v Burroughs Corp., 73 AD2d 801, 801 [4th Dept 1979], affd 52 NY2d 748 [1980]; New York State Div. of Human Rights v Folino, 140 AD3d 1730, 1730 [4th Dept 2016]; Martinez-Tolentino v Buffalo State Coll., 277 AD2d 899, 899 [4th Dept 2000]). Defendant further demonstrated that plaintiff did not file her complaint until March 10, 2017, i.e., over six months after the limitations period had expired.

Defendant having met its burden, the burden shifted to plaintiff to establish an exception to the limitations period. Plaintiff, held the court, failed to meet that burden: “Contrary to plaintiff’s contention, the denial of an employment application is a single act rather than an ongoing policy of discrimination, and thus the continuing violation exception did not apply to toll the statute of limitations[.]”

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