GABIN v. GREENWICH HOUSE INC (2022)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 30, 2021, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the complaint on the ground that plaintiff's employment discrimination action was untimely, unanimously reversed, on the law, without costs, and the motion denied.

The limitations period for claims of age discrimination under the State and City Human Rights Laws is three years (see CPLR 214[2];  Administrative Code of City of N.Y. § 8–502[d]).  An employment discrimination claim “accrues on the date that an adverse employment determination is made and communicated to the plaintiff” (Cordone v. Wilens & Baker, P.C., 286 A.D.2d 597, 598, 730 N.Y.S.2d 89 [1st Dept. 2001]).

Plaintiff's action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8–107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) (see Martinez–Tolentino v. Buffalo State Coll., 277 A.D.2d 899, 715 N.Y.S.2d 554 [4th Dept. 2000];  see also DeNigris v. New York City Health & Hosp. Corp., 861 F. Supp. 2d 185 [S.D.N.Y.2012];  Butler v. New York Health & Racquet Club, 768 F. Supp. 2d 516, 536 [S.D.N.Y.2011];  Nixon v. TWC Admin. LLC, 2017 WL 4712420 at *3–4, 2017 U.S. Dist LEXIS 160175 [S.D.N.Y., Sept. 27, 2017, No. 16–CV–6456 (AJN)]).  The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies (see Butler, 768 F. Supp. 2d at 536).

Moreover, Administrative Code § 8–502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.”  The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8–502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” (Nixon, 2017 WL 4712420 at *3, 2017 U.S. Dist LEXIS at *8).

In any event, the statute of limitations on plaintiff's Human Rights Law claims were tolled by Executive Order 202.8 (9 NYCRR 8.202.8) and the subsequent nine orders issued by Governor Andrew Cuomo during the COVID–19 pandemic (see Murphy v. Harris, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 06086, 2022 WL 16556686 [1st Dept. 2022];  Brash v. Richards, 195 A.D.3d 582, 149 N.Y.S.3d 560 [2d Dept. 2021]).  Thus, plaintiff's action, commenced on May 22, 2021, was timely.