Hernstadt Atlas PLLC, New York (Edward Hernstadt of counsel),
Zachary W. Carter, Corporation Counsel, New York (John Moore
of counsel), for respondents.
Moskowitz, J.P., Gische, Kahn, Gesmer, JJ.
Supreme Court, New York County (Donna M. Mills, J.), entered
April 20, 2015, which, to the extent appealed from, granted
defendants' motion to dismiss plaintiff's defamation
claim as time-barred, unanimously reversed, on the law,
without costs, and the motion denied.
a Caribbean-American physician, was the Deputy Executive
Director of the Behavioral Health Division (BHD) at Kings
County Hospital Center (Kings Hospital), which defendant New
York City Health and Hospitals Corp. (HHC) owns and runs. On
or about June 18, 2008, after allegedly being ignored for
over 24 hours, a schizophrenic patient collapsed on the floor
in the emergency waiting room of Kings Hospital and died. As
a result, plaintiff's superiors terminated his employment
on or about June 20, 2008.
commenced an action in the United States District Court for
the Southern District of New York alleging violations of
federal, state and city discrimination laws, and asserting a
defamation claim. In the federal complaint, plaintiff
alleged, among other things, that before the patient's
death, he and other black employees were demoted or moved out
of BHD while white staffers were left in place or promoted.
Plaintiff also alleged that HHC had defamed him by stating to
the press that he, among others, failed to render aid to the
patient in the waiting room and therefore bore responsibility
for her death.
December 2013, the District Court granted defendants'
motion for summary judgment dismissing plaintiff's
federal, state, and city discrimination claims in the federal
action. Further, the District Court declined to exercise
supplemental jurisdiction over the defamation claim,
dismissing that claim without prejudice. Judgment was
entered, closing the federal action, on December 4, 2013.
then moved under Local Civil Rule 6.3 and Federal Rules of
Civil Procedure (FRCP) rule 59(e) for reconsideration of the
District Court's order and amendment of that order.
Specifically, plaintiff requested that the District Court
either (1) decline to exercise supplementary jurisdiction
over his New York City Human Rights Law (NYCHRL) claim and
dismiss the NYCHRL claim on jurisdictional grounds only; or
(2) deny summary judgment with respect to the NYCHRL claim
and retain supplementary jurisdiction over the state law
defamation claims and the NYCHRL claim.
order dated August 18, 2014, the District Court granted
plaintiff's motion for reconsideration and declined to
assert supplementary jurisdiction over either the
discrimination or defamation claims, instead amending the
December 2013 order to dismiss the "NYCHRL claim
without prejudice, on jurisdictional grounds
about December 8, 2014, plaintiff filed the action underlying
this appeal. By motion dated February 6, 2015, defendants
moved to dismiss the complaint. On their motion, defendants
argued, among other things, that the defamation claim should
be dismissed because plaintiff failed, as required under CPLR
205(a), to commence the state court action within six months
after the United States District Court dismissed the
defamation claim on December 3, 2013. 
as relevant to this appeal, the IAS court granted the motion
in part, dismissing the defamation claim as untimely filed.
In so doing, the court found that, under CPLR 205(a), the
six-month period to commence a new action after the
termination of a prior action began to run on December 4,
2013, the date on which the federal court entered judgment
dismissing plaintiff's complaint.
find that the state law defamation claim was timely filed,
and therefore reinstate that claim.
205(a) does not define "terminated" in the statute
itself, and does not distinguish between
"discretionary" or "nondiscretionary"
appeals. Rather, the Court of Appeals found in Lehman
Bros. v Hughes Hubbard & Reed (92 N.Y.2d 1014, 1016
), that CPLR 205(a) applied and held that the six-month
clock "began to run" on "the date
plaintiff's sole nondiscretionary... appeal was
exhausted" (id. at 1017 [emphasis added];
see also Joseph Francese, Inc. v Enlarged City School
Dist. of Troy, 95 N.Y.2d 59, 64 ).
broad remedial purpose of CPLR 205(a) mandates a finding that
plaintiff's defamation claim was timely filed. Under
Federal Rules of Appellate Procedure (FRAP) rule
4(a)(4)(A)(iv), plaintiff's motion for reconsideration
extended the time for him to file a nondiscretionary appeal
as of right to the United States Court of Appeals for the
Second Circuit until 30 days after the FRCP rule 59(e) motion
was decided - that is, until 30 days after the August 18,
2014 order granting plaintiff's FRCP rule 59(e) motion.
An FRCP rule 59(e) motion also extends a party's time to
file its appeal as of right in the Federal Appeals Court - a
time frame that is otherwise fixed and jurisdictional.
Although an FRCP rule 59(e) motion is not an appeal, it
served the same purpose here as an appeal would have -
namely, it asked a motion court to correct a previous
decision. In addition, the rule 59(e) motion is
nondiscretionary in the sense that word is used by the Court
of Appeals: the motion is as of right because a party need