ALIMO v. OFF TRACK BETTING CORPORATION (1999)

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered May 21, 1998, which, inter alia, granted defendants' cross motion to dismiss the complaint to the extent of dismissing the complaint in its entirety as against defendants Off-Track Betting Corporation (“OTB”) and Michael Menies, and dismissing the discrimination claims against defendants Frank Neglia and Mary Ann Luna, unanimously affirmed, without costs.

 The alleged assault upon plaintiff by co-worker Luna and the offensive song sung by co-worker Neglia, both in 1996, were not part of a “continuing violation” in connection with the purported disparate treatment of plaintiff by OTB from February to June 1994.   Plaintiff's Title VII (42 U.S.C. § 2000e et seq.) claims based on the 1994 treatment were properly dismissed as time-barred, since plaintiff did not file a discrimination complaint with the Equal Employment Opportunity Commission of the United States Department of Justice until May 1996, well after the 300-day period for the filing of such a complaint had expired (see, Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2ndCir. 1993), cert. denied 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 339).   While plaintiff's discrimination claim asserted under State and local statutes (Executive Law § 296;  Title 8 of the Administrative Code of the City of New York) is subject to a three-year Statute of Limitations and is time-barred only insofar as the complained of conduct took place outside that period (see, CPLR 214[2];  Koerner v. State of New York, 62 N.Y.2d 442, 445-446, 478 N.Y.S.2d 584, 467 N.E.2d 232), we nonetheless affirm the dismissal of the claim since plaintiff has failed sufficiently to allege facts indicative of disparate treatment based on gender or national origin (see, Tucker v. Battery Park City Parks Corp., 227 A.D.2d 318, 642 N.Y.S.2d 891).

 Plaintiff's State and local claims alleging that the conduct of Luna and Neglia caused her to be subjected to a hostile work environment were also properly dismissed since there is no allegation that the workplace hostility about which plaintiff complains was caused or countenanced by plaintiff's employer (see, Tomka v. Seiler Corp., 66 F.3d 1295, 1305;  see also, Walsh v. Covenant House, 244 A.D.2d 214, 664 N.Y.S.2d 282).   Luna and Neglia were merely plaintiff's co-workers, and defendant Menies, who plaintiff alleges knew about her mistreatment but took no remedial action, was not a supervisor.

MEMORANDUM DECISION.