with an individual who operated an escort service, introduced women to
Wysocki, and brought provocative photographs of women to Wysocki's
office. The complaint also alleged that during that period Wysocki
touched Callahan's waist, pushed his pelvis against her buttocks, asked
about her measurements, and leered at her. On July 12, 1999, Mr. Callahan
allegedly reported to management that Callahan was ill and unable to
report to work. She was granted leave pursuant to the Family and Medical
Leave Act, placed on long-term disability, and terminated by TIB on
January 3, 2000.
The complaint also alleges that for approximately one year following
July 12, 1999, Callahan was unable to leave her home, except to meet with
her psychotherapist and physician; unable to work or care for herself;
and unable to leave her home unescorted. She allegedly experienced severe
side effects from medication and black-outs, resulting in head and bodily
injuries; experienced a period of hospitalization in September 2000,
arising from the depression; and allegedly suffers from suicidal
ideation. Based on these allegations, the Fifth Cause of Action alleges a
claim against Wysocki for intentional infliction of emotional distress.
An answer was filed by TIB and the instant motion was made by Wysocki
and marked fully submitted on November 7, 2001.
The Complaint is Barred by the Statute of Limitations
A claim for intentional infliction of emotional distress, as an
intentional tort, is governed by § 215(3) of the Civil Practice Law
and Rules ("CPLR") which requires that an action for an intentional tort
be commenced within one year of the alleged injury. Lamb v. CitiBank,
N.A., 1994 WL 497275 (S.D.N.Y. Sept. 12, 1994) ("It is well established
under New York law that a claim of intentional infliction of emotional
distress has a one-year statute of limitations."); Brown v. Bronx Cross
County Med. Group, 834 F. Supp. 105 (S.D.N.Y. 1993); Anderson v. Yarp
Restaurant, Inc., 1996 WL 271891 (S.D.N.Y. May 21, 1996); Peters v.
Citibank, N.A., 253 A.D.2d 803, 677 N.Y.S.2d 626 (2d Dep't 1998).
While the Second Circuit has not definitively addressed whether the
filing of an administrative charge with the EEOC tolls the statute of
limitations as to all claims arising out of such charge, "[t]he weight of
authority . . . is against tolling state claims during the pendency of
the EEOC claim." Gardner v. St. Bonaventure Univ., 171 F. Supp.2d 118
(W.D.N.Y. 2001) (citing Walker v. Weight Watchers Int'l., 961 F. Supp. 32,
36-37 (E.D.N.Y. 1997); Hall v. USAir, Inc., No. 95-CV-3944, 1996 WL
228458, at *7, *8 (E.D.N.Y. April 29, 1996); Gray v. Shearson Lehman
Bros., Inc., 947 F. Supp. 132, 137 (S.D.N.Y. 1996); Lamb, 1994 WL
497275, at *8; Taylor v. Levine, No. 83-CV-4247, 1985 WL 3406, at *2
(E.D.N Y Jan.11, 1985). See also Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (holding that under
the Civil Rights Act of 1866, 42 U.S.C. § 1981, claims are not tolled
by the filing of a charge with the EEOC).
Callahan was terminated effective January 3, 2000. The complaint in
this action was filed May 1, 2001. Because the statute of limitations was
not tolled when Callahan filed a charge with the EEOC on August 31,
2000, the one-year statute of limitations mandated by CPLR § 215(3)
bars the Fifth Cause of Action.
Callahan seeks to toll the running of the statute on the grounds of her
disability, invoking CPLR § 208, which provides a tolling on the
grounds of "a disability because of infancy or insanity." Both the
Callahans and Wysocki have cited McCarthy v. Volkswagen of America,
55 N.Y.2d 543,
548 (1982) as the controlling authority.
In McCarthy, the Court of Appeals rejected a claim that "post-traumatic
neurosis, manifesting itself in an inability to confront the memory of
his accident" constituted the condition of insanity for purposes of
Section 208. Id. at 547. The Court noted that the legislative history of
Section 208 "indicates that the Legislature intended the toll for
insanity to be narrowly interpreted," noting that the Legislature
specifically rejected substitution of the term "mental illness" for
"insanity" in the drafting process. Id. at 548. The Court concluded that
a claim of post-traumatic neurosis did not meet the standard of insanity
set by the Legislature under Section 208 and concluded by warning that "a
contrary interpretation of the statute could greatly and perhaps
inappropriately expand the class of persons able to assert the toll for
insanity and could, concomitantly, weaken the policy of the Statutes of
Limitation as statutes of repose." Id. at 549.
The McCarthy analysis has been strictly applied. See Eisenbach v.
Metro. Transp. Auth., 62 N.Y.2d 973, 974, 479 N.Y.S.2d 338 (1984)
(hospitalization during which strong pain-killing drugs were administered
resulting in the plaintiff being "generally confused, disoriented, and
unable to effectively attend to [his] affairs" did not rise to the level
of insanity under Section 208); Smith v. Smith, 830 F.2d 11, 12 (2d Cir.
1987) (Section 208 insanity standard not met where appellant "was
suffering from a post-traumatic stress disorder which caused her to
repress her memories of the incestuous occurrences of her childhood and
disabled her from instituting litigation which might stimulate traumatic
recall of the childhood events"); de Los Santos v. Fingerson, 1998 WL
740851 (S.D.N.Y. 1998) (Section 208 not satisfied by plaintiff's
post-traumatic stress disorder, adjustment disorder, acute stress
disorder, and claim that he was unable to function because of an overall
inability to function); Dumas v. Agency for Child Development — New
York City Head Start, 569 F. Supp. 831, 833 (S.D.N Y 1983) (diagnosis of
"schizophrenia, paranoid, chronic with acute exacerbation DSM III 295.34"
did not result in tolling under Rule 208 as her disability "was not of
the severe and incapacitating nature contemplated by the tolling
statute. The statute speaks in terms of insanity, not merely mental
illness . . .").*fn1
In sum, Callahan has not adequately pled the requirements for a
statutory extension of the applicable one-year statute of limitations
under Rule 208 and therefore the bar of § 215(3) applies.
This conclusion obviates the need to address the alternative ground for
dismissal, failure to allege a cognizable claim of intentional infliction
of emotional distress.
The complaint against Wysocki is dismissed on statute of limitations
It is so ordered.