Golston-Green v City of New York

[*1] Golston-Green v City of New York 2010 NY Slip Op 51135(U) [28 Misc 3d 1203(A)] Decided on July 1, 2010 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2010
Supreme Court, Queens County

Tamara Golston-Green

against

The City of New York, et al.



28117 2009



Plaintiff:

Anthony C. Ofodile, Esq.

Ofodile & Associates, P.C.

498 Atlantic Avenue

Brooklyn, New York 11217

Defendant:

Michael A. Cardozo

Corporation Counsel of the

City of New York

100 Church Street - Room 2-143

New York, New York 10007

By: Basil C. Sitaras

Assistant Corporation Counsel

Phyllis Orlikoff Flug, J.

Plaintiff Tamara Golston-Green commenced the within action against the City of New York and Inspector John Denesopolis, on October 19, 2009, and alleges that she was discriminated and retaliated against, subjected to a hostile work environment, and constructively discharged on the basis of her gender and/or pregnancy and race in violation of Executive Law § 219 and New York City Administrative Code of § 8-5 et seq.

Ms. Golston-Green previously commenced an action against the City of New York and then Capt. John Denesopolis in the United States District Court, Southern District of New York, in which she asserted federal claims pursuant to Title VII of the Civil Rights Act, as amended, and claims pursuant to New York State and New York City Human Rights Laws, which are identical to the claims asserted in the within action. Defendants in that action sought to dismiss the complaint on the grounds that the plaintiff had failed to file a complaint with the EEOC within 300 days from the date of her initial charge of discrimination. At a scheduled pre-motion conference, plaintiff conceded that the federal court lacked jurisdiction, and at the suggestion of the court, the parties entered into a so-ordered stipulation, dated September 18, 2009. The so-ordered stipulation provides as follows: "1. [p]ursuant to Federal Rule of Civil Procedure 41(a) (, all of plaintiff's federal claims in the above-referenced action that were or could have been brought arising from the allegations set forth in the complaint and amended complaint, including [*2]but not limited to, those brought pursuant to 42 U.S.C. §§ 2000-e, et seq (the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action at ¶¶ 8, 57-72 of the Amended Complaint), are hereby dismissed, with prejudice, and without costs, expenses or fees.""2. Plaintiff waives any claim for costs, expenses and/or attorney's fees which she may have pursuant to 42 U.S.C. §§ 2000-e, et seq.""3. This dismissal does not preclude plaintiff from commencing an action in the Supreme Court of the State of New York, consistent with State law, asserting the New York State and New York City Human Rights Law claims alleged in the Amended Complaint in the above-captioned action, brought pursuant to New York Executive Law §§ 290, et seq. and the New York City Administrative Code §§ 8-101, et seq., including any claim for attorney's fees and costs under New York Executive Law §§ 290, et seq., and the New York City Administrative Code of §§ 8-101, et seq."

Defendants now seek an order dismissing the plaintiff's complaint on the grounds that the three year statute of limitations applicable to all of her claims expired prior to the commencement of this action, and that the toll set forth in CPLR 205(a) is inapplicable here, as the federal action was voluntarily discontinued. Plaintiff, in opposition, asserts that this action is timely, as the federal action was not voluntarily discontinued for the purposes of CPLR 205(a).

It is well settled that pursuant to CPLR 205(a), a party whose timely commenced action has been dismissed subsequent to the expiration of the applicable limitations period, may recommence the action, provided that the original dismissal was not predicated upon, inter alia, a voluntary discontinuance, neglect to prosecute or a final judgment on the merits (Campbell v City of New York, 4 NY3d 200, 209-210 [2005]; Carrick v Central General Hospital, 51 NY2d 242, 247 [1980]; George v Mt. Sinai Hospital, 47 NY2d 170, 180-181 [1979]; Montgomery v Minarcin, 245 AD2d 920, 921 [1997]; see also Elite Associates, Inc. v Board of Educ., Longwood Cent. School Dist., 284 AD2d 298, 299 [2001]).

CPLR 205(a) is viewed as "redemptive" and "ameliorative in nature," since it functions to "lessen the harsh effects of the Statute of Limitations" where "a defendant has been timely served with process" and, thus, timely apprised of the asserted claim (Dreger v New York State Thruway Authority, 177 AD2d 762, 763 [1991], affirmed 81 NY2d 721, [1992]; George v Mt. Sinai Hospital, supra, at 177; see Morris Investors, Inc. v Commissioner of Finance of City of New York, 69 NY2d 933, 935-936 [1987]; Gaines v City of New York, 215 NY 533, 537-538 [1915]; Freedman v New York Hosp. Medical Center of Queens, 9 AD3d 415, 416 [2004]).

In construing the statute's application, the Court of Appeals has cautioned against undue reliance on "talismatic catchwords" which might "becloud the issues" and thereby "fritter[ ] away the statute's liberal effect" (George v Mt. Sinai Hospital, supra, at 175-176, accord also Carrick [*3]v Central General Hospital, supra, at 247; Gaines v City of New York, supra, at 537; see Montgomery v Minarcin, supra, at 921).

Here, the federal court in the so-ordered stipulation explicitly dismissed the federal claims pursuant to Federal Rules of Procedure Rule 41(a)(2), and explicitly stated that said dismissal did not preclude the plaintiff from commencing an action on her state and local law claims in the Supreme Court, "consistent with State law." The courts have consistently held that the dismissal of a prior lawsuit pursuant Rule 41(a)(2) is not the equivalent of a voluntary discontinuance (Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160, 164 [1996]; Extebank v Finkelstein, 188 AD2d 513, 513 [1992]; Censor v Mead Reinsurance Corp., 176 AD2d 600, 601 [1991]). Defendants' assertion that the so-ordered stipulation constituted a voluntary discontinuance of the federal action, therefore, is rejected.

Furthermore, although the so-ordered stipulation does not expressly state that the dismissal of the federal action was intended to be without prejudice to the recommencement of a new action pursuant to CPLR 205(a), it is clear from the factual context in which it was executed that this was indeed its contemplated purpose (Matter of Walter, 29 AD3d 598, 599 [2006]; Montgomery v Minarcin, supra; see also Bailey v Brookdale University Hosp. and Medical Center, 292 AD2d 328, 329 [2002]; see also Bread & Butter, LLC v Certain Underwriters at Lloyd's London, 23 Misc 3d 1109A [2009]).

Accordingly, defendants' motion to dismiss the complaint is denied. Defendants are directed to serve their answer within 20 days from the date of service of this order, together with notice of entry.

Dated: July 1, 2010

J.S.C.