Peckham v. Island Park Union Free Sch. Dist.

• Decision Date: 05 December 2018
• Docket Number: Index No. 605225/15,2016–04390
• Citation: 167 A.D.3d 641,87 N.Y.S.3d 480 (Mem)
• Parties: Elizabeth PECKHAM, Respondent, v. ISLAND PARK UNION FREE SCHOOL DISTRICT, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 641

87 N.Y.S.3d 480 (Mem)

Elizabeth PECKHAM, Respondent,

v.ISLAND PARK UNION FREE SCHOOL DISTRICT, Appellant.

2016–04390

Index No. 605225/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 21, 2018

December 5, 2018

Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Maurizio Savoiardo and Michael Feinstein of counsel), for appellant.

Ricotta & Marks, P.C., Long Island City, N.Y. (Matthew Marks of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, the defendant's motion pursuant to CPLR 3211 to dismiss the complaint is granted, and the plaintiff's cross motion for leave to amend the complaint is denied.

The plaintiff commenced this action against the defendant, Island Park Union Free School District, to recover damages for employment discrimination on the basis of age and sexual orientation in violation of Executive Law § 296. The defendant moved pursuant to, inter alia, CPLR 3211(a)(1), (5), and (7) to dismiss the complaint, and the plaintiff cross-moved for leave to amend her complaint. The Supreme Court denied the motion and granted the cross motion, and the defendant appeals.

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" ( Selkirk v. State of New York, 249 A.D.2d 818, 819, 671 N.Y.S.2d 824 ; see Town of Oyster Bay v. Lizza Indus., Inc., 22 N.Y.3d 1024, 1032, 981 N.Y.S.2d 643, 4 N.E.3d 944 ; Matter of Ballard v. HSBC Bank USA, 42 A.D.3d 938, 839 N.Y.S.2d 874 ; Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, affd 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 ).

While leave to amend the pleadings shall be freely given (see CPLR 3025[b] ), leave should not be granted when the proposed amendment is palpably insufficient or devoid of merit (see Darby Group Cos., Inc. v. Wulforst Acquisition, LLC, 130 A.D.3d 866, 867, 14 N.Y.S.3d 143 ; Leszczynski v. Kelly & McGlynn, 281 A.D.2d 519, 722 N.Y.S.2d 254 ). Here, the proposed amended complaint failed to sufficiently plead allegations...