Raghavendra v. Bollinger

Appellate Division of the Supreme Court of New York

Raghavendra v. Bollinger

128 A.D.3d 416, 8 N.Y.S.3d 208

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 2015

Docket14995 100389/13

StatusPublished

This text of 128 A.D.3d 416 (Raghavendra v. Bollinger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raghavendra v. Bollinger, 128 A.D.3d 416, 8 N.Y.S.3d 208 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about February 4, 2014, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the causes of action under the State and City Human Rights Laws, unanimously affirmed, with costs.

This action is time-barred. Defendants’ refusal to rehire plaintiff was communicated to him no later than June 28, 2007; the applicable limitations period started running on that date (see National Railroad Passenger Corporation v Morgan, 536 US 101, 114 [2002]). Plaintiffs repeated applications to be rehired could not toll, or restart, the limitations period (see White v Stackhouse, Inc., 910 F Supp 269, 273-274 [WD Va 1995]; DeFazio v Delta Air Lines, Inc., 849 F Supp 98, 102 [D Mass 1994], affd 34 F3d 1065 [1st Cir 1994]). Defendants’ “application of the non-rehire policy, [to the extent it] occurred] within the statutory time-limits, can not form the basis of a discrete act of discrimination upon which plaintiff may proceed. Rather, the application of the non-rehire policy was a continuation of the original determination that plaintiff was not eligible for re-employment” (McMillin v United Airlines, 2008 WL 1744549, *3, 2008 US Dist LEXIS 29917, *10-11 [WD NY, Apr. 11, 2008, No. 07-CV-6450T] [citations omitted]).

As the motion court found, this action is also barred, pursuant to the doctrine of res judicata, by a prior federal court judgment disposing of all of the claims that plaintiff raised or could have raised in that court (see Vedder v County of Nassau, 59 AD3d 527 [2d Dept 2009], lv denied 13 NY3d 702 [2009]; Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 405 [2d Dept 2005]). Plaintiffs unceasing applications to be rehired do not remove his post-judgment claims from the bar of res judicata (see Benjamin v New York City Dept. of Health, 57 AD3d 403 [1st Dept 2008], lv dismissed 14 NY3d 880 [2010]; Spoon v American Agriculturalist, 103 AD2d 929 [3d Dept 1984]).

*417 We have considered plaintiffs remaining contentions and find them without merit. Concur — Tom, J.P., Andrias, Saxe, DeGrasse and Kapnick, JJ.

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Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about February 4, 2014, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the causes of action under the State and City Human Rights Laws, unanimously affirmed, with costs.

This action is time-barred. Defendants’ refusal to rehire plaintiff was communicated to him no later than June 28, 2007; the applicable limitations period started running on that date (see National Railroad Passenger Corporation v Morgan, 536 US 101, 114 [2002]). Plaintiffs repeated applications to be rehired could not toll, or restart, the limitations period (see White v Stackhouse, Inc., 910 F Supp 269, 273-274 [WD Va 1995]; DeFazio v Delta Air Lines, Inc., 849 F Supp 98, 102 [D Mass 1994], affd 34 F3d 1065 [1st Cir 1994]). Defendants’ “application of the non-rehire policy, [to the extent it] occurred] within the statutory time-limits, can not form the basis of a discrete act of discrimination upon which plaintiff may proceed. Rather, the application of the non-rehire policy was a continuation of the original determination that plaintiff was not eligible for re-employment” (McMillin v United Airlines, 2008 WL 1744549, *3, 2008 US Dist LEXIS 29917, *10-11 [WD NY, Apr. 11, 2008, No. 07-CV-6450T] [citations omitted]).

As the motion court found, this action is also barred, pursuant to the doctrine of res judicata, by a prior federal court judgment disposing of all of the claims that plaintiff raised or could have raised in that court (see Vedder v County of Nassau, 59 AD3d 527 [2d Dept 2009], lv denied 13 NY3d 702 [2009]; Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 405 [2d Dept 2005]). Plaintiffs unceasing applications to be rehired do not remove his post-judgment claims from the bar of res judicata (see Benjamin v New York City Dept. of Health, 57 AD3d 403 [1st Dept 2008], lv dismissed 14 NY3d 880 [2010]; Spoon v American Agriculturalist, 103 AD2d 929 [3d Dept 1984]).

*417 We have considered plaintiffs remaining contentions and find them without merit. Concur — Tom, J.P., Andrias, Saxe, DeGrasse and Kapnick, JJ.

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128 A.D.3d 416, 8 N.Y.S.3d 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raghavendra-v-bollinger-nyappdiv-2015.

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