Tong v. Target Inc.

• Decision Date: 26 April 2011
• Parties: Dickon TONG, appellant,v.TARGET, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1046
922 N.Y.S.2d 458
2011 N.Y. Slip Op. 03585

Dickon TONG, appellant,
v.
TARGET, INC., et al., respondents.

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

April 26, 2011.

[922 N.Y.S.2d 458]

Michael D. Diederich, Jr., Stony Point, N.Y., for appellant.Simmons Jannace, LLP, Syosset, N.Y. (Sal F. DeLuca of counsel), for respondents.WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

[83 A.D.3d 1046] In an action to recover damages for personal injuries and for racial discrimination pursuant to 42 USC § 1981, the plaintiff appeals from an order of the Supreme Court, Rockland County (Berliner, J.), entered August 27, 2010, which granted the

[922 N.Y.S.2d 459]

defendants' motion pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the first cause of action as barred by the one year statute of limitations applicable to intentional torts ( see CPLR 215[3] ). In determining which limitations period is applicable to a given claim, the court must look to the substance of the allegations rather than to the characterization of those allegations by the parties ( see Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 293, 392 N.Y.S.2d 409, 360 N.E.2d 1091; Doe v. Jacobs, 19 A.D.3d 641, 642, 797 N.Y.S.2d 293; Rutzinger v. Lewis, 302 A.D.2d 653, 654, 754 N.Y.S.2d 735). The factual allegations of the first cause of action clearly set forth only intentional tortious conduct on the part of the defendants ( see e.g. Cagliostro v. Madison Sq. Garden, Inc., 73 A.D.3d 534, 535, 901 N.Y.S.2d 222; Schetzen v. Robotsis, 273 A.D.2d 220, 220–221, 709 N.Y.S.2d 193; Friedman v. Gallinelli, 240 A.D.2d 699, 700, 659 N.Y.S.2d 317; Locke v. North Gateway Rest., 233 A.D.2d 578, 579, 649 N.Y.S.2d 539), and the cause of action therefore was governed by the one-year limitations period, which had expired prior to commencement of this action. The [83 A.D.3d 1047] plaintiff could not avoid the running of the limitations period merely by attempting to couch the claim as one sounding in negligence ( see Smith v. County of Erie, 295 A.D.2d 1010, 1010–1011, 743 N.Y.S.2d 649; Wertzberger v. City of New York, 254 A.D.2d 352, 680 N.Y.S.2d 260; Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 376–377, 515 N.Y.S.2d 631).

The Supreme Court also...