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Donas v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 14, 2009

HARRY DONAS, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

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

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.

Mazzarelli, J.P., Saxe, Nardelli, Renwick, Freedman, JJ.

100977/06

Although plaintiff's 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, plaintiff's allegations are insufficient to establish a continuing violation claim (see generally National R.R. Passenger Corp. v Morgan, 536 US 101, 114-115 [2002]; Drayton v Veterans Admin., 654 F Supp 558, 567 [SD NY 1987]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090514

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