APPEAL by the defendants, in an action, inter alia, to recover damages for sexual discrimination, from an order of the Supreme Court (Thomas P. Phelan, J.), entered May 2, 2007, in Nassau County, which granted the plaintiff's motion for leave to amend the complaint, which was treated by the Court as a motion for leave to replead the first cause of action and certain portions of the second cause of action.
The opinion of the court was delivered by: Rivera, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.
On the instant appeal, we consider, inter alia, the issue of whether a motion for leave to replead, pursuant to the current version of CPLR 3211(e), is subject to any time limitation. In 2005, the Legislature amended CPLR 3211(e). Although this amendment did not prescribe any time limitation within which a party may move for leave to replead, the defendants invite this Court to "fill the temporal gap" and impose a 30-day limitation, akin to a motion for leave to reargue pursuant to CPLR 2221(d)(3). For the reasons that follow, we decline the defendants' invitation. We will not partake in judicial legislation by creating a time limitation where none is present in the statute.
I. Factual and Procedural Background
1. The Complaint with the Division of Human Rights
On May 12, 2003, the plaintiff, a bisexual male, became employed by the Department of Public Works of the Incorporated Village of Rockville Centre. Following an alleged ongoing course of gender-based harassment and threats by his co-workers, namely, the individual defendants, Angelo Taylor, Peter Kunze, Kevin O'Rourke, and Timothy Seaman, the plaintiff filed a complaint, dated December 30, 2003, against the Village with the New York State Division of Human Rights (hereinafter the Division of Human Rights). Therein, he charged the Village, inter alia, with unlawful discriminatory practices in violation of Human Rights Law § 296.
Specifically, the plaintiff alleged that notwithstanding complaints to his supervisor, the harassment continued and, in fact, escalated into threats of violence. He further alleged that during his six months of employment, he was subjected to five "random" drug tests and that his "co-workers" who were "not gay were not treated in this manner."
On November 3, 2003, the plaintiff informed the manager of the Department of Public Works of the harassment and subsequently filed a written form alleging discrimination and harassment. On November 14, 2003, he began treatment with a psychiatrist, who placed him on medical leave for depression.
In an answer dated March 19, 2004, the Village denied the substantive allegations asserted by the plaintiff, except that it admitted, inter alia, that, on November 3, 2003, the plaintiff met with the manager of the Department of Public Works and that on November 4, 2003, the plaintiff filed a written form alleging discrimination and harassment. The Village claimed that the plaintiff had been subjected to only three drug tests, only one of which was random.
On February 27, 2006, the Division of Human Rights dismissed the complaint on the ground of "administrative convenience."
A. The Verified Complaint
On March 14, 2006, the plaintiff commenced the instant action in the Supreme Court, Nassau County, against the Village, Taylor, Kunze, O'Rourke, and Seaman. In the verified complaint, the plaintiff asserted four causes of action: (1) sexual harassment, (2) "prima facie retaliation," (3) intentional infliction of emotional distress, and (4) prima facie tort.
i. The First Cause of Action
In the first cause of action to recover damages for sexual harassment, the plaintiff alleged, inter alia, that during the course of his employment, the Village violated civil rights afforded to him under federal, state, and common law. Specifically, the plaintiff alleged violations of the "New York Human Rights Law and 42 U.S.C. 1983 and Title VII." He asserted that the Village, inter alia, condoned and participated in gender-based sexual harassment.
The plaintiff claimed that beginning on or about May 23, 2003, and up to and including November 21, 2003, Taylor, whom he alleged was serving in a supervisory capacity, repeatedly engaged in verbal harassment by calling him various anti-homosexual names. He also alleged that from August through December 2003, Taylor made threatening and abusive telephone calls to him at his home and on his cell phone. The plaintiff charged that Taylor routinely made obscene gestures, threatened to tamper with his food and beverages, and threatened him with physical violence. The plaintiff alleged similar verbal harassment and threats by O'Rourke, Kunze, and Seaman, including an alleged statement by Kunze that the plaintiff would be fired for being gay.
The plaintiff alleged that in July 2003, September 2003, and October 2003, he placed the Village on notice of the harassment and hostile work environment by reporting the incidents to his supervisor. He further alleged that in October 2003, he was required to submit to a third drug test in a period of less than five months.
According to the plaintiff, by November 2003, he was frustrated with the ongoing harassment and the lack of a resolution and complained to the Superintendent of Public Works. On November 4, 2003, he presented his supervisor with a written complaint. On November 14, 2003, the plaintiff left his place of employment.
ii. The Second Cause of Action
In the second cause of action, the plaintiff sought to recover damages for "prima facie retaliation." Therein, the plaintiff repeated the previous allegations and alleged that from July 2003 through November 14, 2003, he reported incidents of physical threats, sexual harassment, and an abusive work environment as described in Title VII of the Civil Rights Act of 1964 (42 USC, ch 21, § 2000e, et seq., hereinafter Title VII), the Human Rights Law, and the Executive Law. According to the plaintiff, the Village violated the aforementioned statutes by failing to take "any affirmative or effective measures" to prevent Taylor from retaliating against him based upon his complaints to his supervisor and by directing the plaintiff to undergo drug testing at the request of Taylor, Kunze, O'Rourke, and Seaman. The plaintiff further alleged that the Village had ongoing knowledge of the harassment and facilitated it "based upon encouragement" from Taylor, Kunze, O'Rourke, and Seaman, that the drug tests never revealed any illegal or intoxicating substances, and that Taylor, in concert with the Village, committed such acts of retaliation with malice.
iii. The Third and Fourth Causes of Action
In the third cause of action to recover compensatory and punitive damages for intentional infliction of emotional distress, the plaintiff repeated the previous allegations and further alleged that the acts of Taylor, O'Rourke, Kunze, and Seaman constituted "intentional" and "malicious" infliction of mental anguish and distress upon ...