Opinion
14995, 100389/13
05-05-2015
Rajagopala S. RAGHAVENDRA, etc., Plaintiff–Appellant, v. Lee C. BOLLINGER, etc., et al., Defendants–Respondents.
Robert G. Leino, New York, for appellant. Proskauer Rose LLP, New York (Susan D. Friedfel of counsel), for respondents.
Robert G. Leino, New York, for appellant.
Proskauer Rose LLP, New York (Susan D. Friedfel of counsel), for respondents.
TOM, J.P., ANDRIAS, SAXE, DeGRASSE, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about February 4, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action under the State and City Human Rights Laws, unanimously affirmed, with costs.
This action is time-barred. Defendants' refusal to rehire plaintiff was communicated to him no later than June 28, 2007; the applicable limitations period started running on that date (see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 [2002] ). Plaintiff's repeated applications to be rehired could not toll, or restart, the limitations period (see White v. Stackhouse, Inc., 910 F.Supp. 269, 273–274 [W.D.Va.1995] ; DeFazio v. Delta Air Lines, Inc., 849 F.Supp. 98, 102 [D.Mass.1994], affd. 34 F.3d 1065 [1st Cir.1994] ). Defendants' “application of the non-rehire policy, [to the extent] it occur[red] within the statutory time-limits, can not form the basis of a discrete act of discrimination upon which plaintiff may proceed. Rather, the application of the non-rehire policy was a continuation of the original determination that plaintiff was not eligible for re-employment” (McMillin v. United Airlines, 2008 WL 1744549, *3, 2008 U.S. Dist. LEXIS 29917, *10–11 [W.D.N.Y.2008] ).
As the motion court found, this action is also barred, pursuant to the doctrine of res judicata, by a prior federal court judgment disposing of all of the claims that plaintiff raised or could have raised in that court (see Vedder v. County of Nassau, 59 A.D.3d 527, 873 N.Y.S.2d 175 [2d Dept.2009], lv. denied 13 N.Y.3d 702, 2009 WL 2622095 [2009] ; Town of New Windsor v. New Windsor Volunteer Ambulance Corps., Inc., 16 A.D.3d 403, 405, 791 N.Y.S.2d 159 [2d Dept.2005] ). Plaintiff's unceasing applications to be rehired do not remove his postjudgment claims from the bar of res judicata (see Benjamin v. New York City Dept. of Health, 57 A.D.3d 403, 870 N.Y.S.2d 290 [1st Dept.2008], lv. dismissed 14 N.Y.3d 880, 903 N.Y.S.2d 335, 929 N.E.2d 398 [2010] ; Spoon v. American Agriculturalist, 103 A.D.2d 929, 478 N.Y.S.2d 174 [3d Dept.1984] ).We have considered plaintiff's remaining contentions and find them without merit.