Bourke v. City of New York

Bourke v City of New York 2026 NY Slip Op 05513 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Daniel Bourke, appellant, v City of New York, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-13321, (Index No. 505716/19) Angela G. Iannacci, J.P. Deborah A. Dowling Carl J. Landicino Laurence L. Love, JJ. David C. Wims, Brooklyn, NY, for appellant. Steven Banks, Corporation Counsel, New York, NY (Deborah A. Brenner and Hanna L. St. Marie of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for employment discrimination on the basis of disability in violation of the New York State Human Rights Law and the New York City Human Rights Law, the plaintiff appeals from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated October 14, 2024. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is affirmed, with costs. In March 2019, the plaintiff commenced this action against the defendant to recover damages for employment discrimination on the basis of disability in violation of the New York State Human Rights Law (NYSHRL) (Executive Law § 290 et seq.) and the New York City Human Rights Law (NYCHRL) (Administrative Code of City of NY § 8-101 et seq.). Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated October 14, 2024, the Supreme Court granted the defendant's motion. The plaintiff appeals. "Actions alleging discrimination under the NYSHRL and NYCHRL must be commenced within three years after the alleged unlawful discriminatory practice or act of discriminatory harassment" (Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 AD3d 579, 580-581; see CPLR 214[2]; Administrative Code § 8-502[d]; Acala v Mintz Levin Cohn Ferris Golovsky & Popeo, P.C., 222 AD3d 706, 707; Mejia v T.N. 888 Eighth Ave. LLC Co., 169 AD3d 613, 613-614). "[A]n employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff" (Cordone v Wilens & Baker, 286 AD2d 597, 598; see Matter of Queensborough Community Coll. of City Univ of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926, 926). Here, on or about July 16, 2014, the defendant notified the plaintiff and the New York City Department of Citywide Administrative Services that after an investigation, the plaintiff failed to establish his entitlement to a disabled veteran's credit (see Civil Service Law § 85), thereby starting the running of the applicable statute of limitations. The plaintiff's written request seeking reconsideration of the defendant's decision to withdraw the plaintiff's disabled veteran's credit did not toll the statute of limitations, nor did it allow the plaintiff to circumvent the statute of limitations [*2]by demanding that the defendant change its determination and thereafter commencing an action when that demand was refused (see Matter of Imandt v New York State Unified Ct. Sys., 168 AD3d 1051, 1052; Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 20 AD3d 28, 36). The plaintiff commenced this action on March 15, 2019, almost five years after the defendant notified the plaintiff that he was ineligible for a disabled veteran's credit. Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint (see Mouscardy v Consolidated Edison Co. of N.Y., Inc., 185 AD3d at 581; Santiago-Mendez v City of New York, 136 AD3d 428, 428). IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court