March 13, 2014
Paul Ferraro, Plaintiff-Appellant,
New York City Department of Education, et al., Defendants-Respondents.
Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Friedman, J.P., Acosta, Andrias, DeGrasse, Freedman, JJ.
Orders, Supreme Court, New York County (Geoffrey D. Wright, J.), entered September 5, 2012, which granted defendants' motion to dismiss the complaint and sub silentio denied plaintiff's cross motion for leave to amend the complaint, unanimously reversed, on the law, without costs, the motion denied and the cross motion granted.
Upon defendants' pre-answer, pre-discovery motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), it cannot be said, as a matter of law, that the facts alleged by plaintiff, if proven, would not constitute discrimination, retaliation and a hostile work environment in violation of the New York State and New York City Human Rights Laws. To the extent plaintiff alleges acts that occurred more than one year before he commenced this action (see Education Law § 3813[2-b]), it cannot be said, as a matter of law, that these acts, if proven, were not part of a single continuing pattern of unlawful conduct extending into the one-year period immediately preceding the filing of the complaint (see Ain v Glazer, 257 A.D.2d 422, 423 [1st Dept 1999]). Under the circumstances, plaintiff's cross motion for leave to amend his complaint should have been granted.