Rodriguez v Dickard Widder Indus., Inc NY Slip Op 33894(U) May 27, 2014 Supreme Court, Queens County Docket Number: 19323/13 Judge: Howard G.

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1 Rodrguez v Dckard Wdder ndus., nc NY Slp Op 33894(U) May 27, 2014 Supreme Court, Queens County Docket Number: 19323/13 Judge: Howard G. Lane Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] 1VJrJ/2013AFFTS NOTCE OF MOTON Page 308 ol J "4 =>e:c 1of4 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY ' Present: HONORABLE HOWARD G. LANE AS PART 6 Justce J ANGELA RODRGUEZ, Planbff, -aganst- DCKARD WDDER NDUST~ES, Defendpnt. NC., ndex No /13 Date March 31, 2013 Cal. No. 129 Sequence No. 1 QB...- Papers Numbered Notce of TAffdavts-Exhbts Opposton Reply... l 9-10 Upon the forego~g papers t s ordered that the branch of the mot on by defendant, Dcker Wdder ndustres, nc. seekng to dsmss the plantff, Angela Rodrguez's Complant pursuant to CPLR 32ll(a} (5) on lthe grounds that the clams are barred by the statute of lmtatons s hereby dened. untmely made. Sad moton s On a moton to d~smss pursuant to CPLR 3211, the pleadng s to be afforded a lrberal constructon (Leon v. Martnez, 84 NY2d 83 (1994]). n determnng whether plantff's complant states a vald cause of acton, the court must accept each allegaton as true, wfhout expressng any opnon ~n plantff's ultmate ablty to establsh the truth of these allegatons before the trer of fact (219 Broadway Corp. v. Alexanders, nc., 46 NY2d 506 [1979); ToLgher ndustres, nc. v. Northern Westchester Jont Wate~ Works, 304 AD2d 822 [2d Dept 2003]). The court must fnd plant~ff's complant to be legally suffcent f t fnds that plantff s enttled to recovery upon any reasonable vew of the ; stated facts (see, CPLR 32ll(a] (7]; Hoag v. Chancellor, nc., 246 AD2d 224 [l t Dept 1998)). JUN 5 10\~ gj>e~1.r?c5g~~ l ~ Pnnted

3 [* 2] 19323/2013 M FTS NOTCE OF MOTON 11lM013 OROEA s:gneo Pogo 309 of 31 4 Dsmssal s wa~ranted under CP1R 32ll(a) (5) on the grounds that: -"the cause pf acton may not be mantaned because of 1 arbtraton and award, collateral estoppel, dscharge n bankruptcy, nfancy or other dsablty of the movng party, payment, release, res judcata, statute of :lmtatons, or statute of frauds;" A pre-answer modon to dsmss on statute of lmtatons grounds must be made!before servce of the responsve pleadng (3211 [e}). The record reflects that servce was complete on November 21, De~fendant had thrty (30) days from servce of the plantff's summdns and complant to make ts moton to dsmss pursuant to C;PLR 3211 (a) (5) (CPLR 3012 [a]; 3211 [e]). Defendant served ts ~oton to dsmss on January 16, However, the moton srould have been made by December 21, Accordngly, that branch of the mot on see~ng to dsm ss the plantff's Complant pursuant to CPLR 32ll (a ) (5) on t he grounds that the clams are barred by the statute of lmtato~ s s dened as uncmely ~ That branch of the moton seekng to dsmss the plantff's Complant- pursuant to.cplr 32ll(a) (2) on the grounds that t he court does not have sobject matter jursdcton of the cause of acton s hereby granted. The record reflebts that on October 17, 2013, pl a ntff, Angela Rodrguez commenced a complant allegng fve (5) causes of acton under state1law: hostle work envronment, retal atory :ermnaton, gender based dscrmnaton, neglgent hrng and retenton; and neglgent nflcton of emoconal dstress. Defendant, DckaJd Wdder ndustres, nc. es~ablshed a prma face case that all of the causes of acton n the Complant are barred by the electon of remedes doctrne, and as such, ths Court has no subject matter jursdcton. The record also Jeflects that on December 1, 2008, plantff fled a verfed comp]ant wth the New York State Dvson of Human Rghts ("the D~son") chargng defendant wth dscrmnaton on the ~ass of sex, hostle work envronment, and retalaton for oppos~ng dscrmnaton. 2 Pnnl<d 7127/2017

4 [* 3] 1>.>L 1J1JAl-HS.NOTCE OF MOTON,. llnnon OROER SGllEO P ge 310 of 31.t Ptet lot. Rodrguez's complant before the Dvson alleged that she was harassed by ShpRng Manager Gerald Gbson ("Gbson" ), ncludng that Gbson showed Rodrguez a pens molded out of wax and that Gbson arranged for Rodrguez to see another worker fondlng hmself. Rodrguez's Dvson complant also alleged that another worker, John Reyes, complaned to upper management about Gbson ' s harass 1 ment of Rodrguez, that ~odrguez was ntervewed by the co'mpany's Presdent and Vce Presdent about Gbson and that Rodr!guez was termnated shortly thereafter on November 18, 2008, be~ause she cooperated wth the complant aganst Gbson. Afte~ nvestgaton, the Dvson referred the case to a publc hear1ng, and publc hearng sessons were held. On June 3r 2013, Admnstratve Law Judge Thomas S. Protano ssued Recommended chdngs of fact, Opnon and Decson, fndng that Rodrguez faled to use the complant mechansms avalable to her, tha~ Dckard Wdder acted properly after learnng about the alleged harassment, and that the Company artculated a legtm~te busness reason for termnatng Rodrguez's employment. Accordngly, Admnstratve Law Judge Protano recommended t~at the case be dsmssed. On July 29, 2013, Dvson Commssoner Galen D. Krkland ssued a Notce and Fnal Order, adoptng:and ssung Admnstratve Law Judge Protano's RecommendedlOrder as the Dvson's Fnal Order. The Dvson's Notce and1fnal Order provded that any party to the proceedng could appeql the Order to the Supreme Court by fln~ a Petton and Notce 'of Petton wthn sxty (60 ) days after servce of the Order. Plantff dd not appeal the Dvson's Notce and Fnal Orde. Lke the compla~t fled by Rodrguez wth the Dvson, tte nstant Complant also alleges that Rodrguez was subject to harassment by Gbson, jncludng that Gbson ~howed a pens molded out of wax and that Gbson arranged for Rodrguez to see another worker fondlng hmsel~; that Reyes complaned to the Company about Gbson's harassm'ent of Rodrguez: that the Company conducted.an nvestgaton of Reyes' complant; that Rodrguez partcpated n the n~estgaton; and that RodrgJez was termnated shortl y after partcpatng n the nvestgaton. New York Executve Law secton 297(9) provdes for an electon of remed~es, whch states n relevant part: Any person ctamng to be aggreved by an unlawful ~scrmnatory practce shall have a lcause of acton n any court of approprate ~ursdcton for damages... unless 3 Pnnted 71'27r"2017

5 [* 4] 1 JlYl013AFFTS NOTCE OF MOTON 1931'll101) OftCER s:c.teo -such perso~ had fled a complant hereunder or wth an~ local commsson on human rghts... provded t~at, where the dvson had dsmssed ~uch complant on the grounds of : admnstratve convenence, on the grounds of untmelne~s, or on the grounds that the elect on of remedesl s annulled, such person shall mantan all rghts to brng sut as f no complant had been fled wth the dvs on. Where a plantff fles a clam wth the Dvson and subsequently f les su~t n federal and state court rasng substantally smlar1charges, both the federal and state courts lack subject matter jvrsdcton (Sesson v. New York Cty, Dst. Councl of Carpenters, 2011 U.S. Dst. LEXS at **l}- 15 (S.D.N.Y. February 1 10, 2011); Wren v. Verzon, 106 AD3d 995 [2d Dept 2013)). The hostle workjenvronment clams, gender dscrmnaton and retalatory termnaton clams are barred by the electon of remedes doctrne as Jad clams were based on the same alleged ncdent, underlyng course of conduct, and same operatve events as those alleged befo~e the Dvson (see, Bhagla v. State, 228 A02d 882 [3d Dept 199~]; see also, Troy v. Goord, 300 AD2d 1086 [4t" Dept 2002)). ' Addtonally, eve'.n though plantff dd not assert before the Dvson any cla~s for neglgent hrng and retenton and neglgent nflcton o~ emotonal dstress, sad clams ~re barred snce they arse out of the same events as that alleged by ~lantff n her complant wth the Dvson. Accordngly, the ~oton s dsmssed. Ths consttutes the decson and order of ~he Court. s granted and plantff's Complan: Dated: May 27, !/l!v.... Howard G. Lane, J.s.c. 4