CARRINGTON v. NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  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 § 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 A.D.3d 1718, 1719, 28 N.Y.S.3d 535 [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 A.D.2d 801, 801, 423 N.Y.S.2d 725 [4th Dept. 1979], affd 52 N.Y.2d 748, 436 N.Y.S.2d 276, 417 N.E.2d 570 [1980];  New York State Div. of Human Rights v. Folino, 140 A.D.3d 1730, 1730, 32 N.Y.S.3d 417 [4th Dept. 2016];  Martinez–Tolentino v. Buffalo State Coll., 277 A.D.2d 899, 899, 715 N.Y.S.2d 554 [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.

Inasmuch as defendant met its burden, the burden shifted to plaintiff to establish that an exception to the limitations period applies (see Siegel v. Wank, 183 A.D.2d 158, 159, 589 N.Y.S.2d 934 [3d Dept. 1992] ), and we conclude that plaintiff 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 (see generally Burroughs Corp., 73 A.D.2d at 801, 423 N.Y.S.2d 725;  Martinez–Tolentino, 277 A.D.2d at 899, 715 N.Y.S.2d 554).