Donas v. City of New York

62 A.D.3d 504, 878 N.Y.S.2d 360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 29, 2008, which granted defendants’ motion to dismiss the complaint and denied plaintiffs motion for leave to file an amended complaint, unanimously affirmed, without costs.

Although plaintiffs claim accrued no later than September 2003, when he allegedly was told that he would never be promoted, plaintiff failed to serve defendants with a notice of claim within 90 days thereafter, as required by General Municipal Law § 50-e (1) (a). He did not serve his notice of claim until January 26, 2005. Nor did plaintiff seek permission to file a late notice of claim (see General Municipal Law § 50-e [5]; § 50-i; Frank v City of New York, 240 AD2d 198 [1997]). Moreover, a claim under Civil Service Law § 75-b must be brought within one year after it accrues (Civil Service Law § 75-b [3] [c]; Labor Law § 740 [4] [a]).

In his proposed amended complaint, plaintiff alleges ongoing retaliatory acts. However, absent any details of new discrete acts, rather than the effects of past acts, in the 90 days preceding his January 26, 2005 notice of claim, plaintiffs allegations are insufficient to establish a continuing violation claim (see generally National Railroad Passenger Corporation v Morgan, 536 US 101, 114-115 [2002]; Drayton v Veterans Admin., 654 F Supp 558, 567 [SD NY 1987]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Nardelli, Renwick and Freedman, JJ. [See 2008 NY Slip Op 30241(U).]