Summary
holding that once the plaintiff filed his discrimination claim with the NYSDHR, he was precluded from bringing a cause of action in court asserting the same discriminatory acts
Summary of this case from SAUNDERS v. NYC DEPARTMENT OF EDUCATIONOpinion
December 12, 1994
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the order and judgment is affirmed, with costs.
Contrary to the plaintiff's contentions, Executive Law § 297 (9) clearly set forth an election of remedies provision. Thus, once the plaintiff filed his age-discrimination claim with the New York State Division of Human Rights, he was precluded from bringing a cause of action in the New York State Supreme Court asserting the same discriminatory acts (see, Scott v Carter-Wallace, Inc., 147 A.D.2d 33; Long v ATT Information Sys., 733 F. Supp. 188).
Moreover, even assuming that the plaintiff was alleging different discriminatory acts, his complaint is time-barred due to his failure to serve a notice of claim upon the Town of New Castle (see, Piontka v Suffolk County Police Dept., 202 A.D.2d 409; Mills v County of Monroe, 89 A.D.2d 776, affd 59 N.Y.2d 307, cert denied 464 U.S. 1018). While the plaintiff correctly argues that an action brought pursuant to Executive Law § 296 is not a tort claim which falls within the notice provisions of the General Municipal Law (see, Alaimo v New York City Dept. of Sanitation, 203 A.D.2d 501; Simpson v New York City Tr. Auth., 188 A.D.2d 522), nevertheless, his action must be dismissed. Town Law § 67 (1), (2) provides that
"[a]ny claim * * * which may be made against the town * * * for damages for wrong or injury to person or property * * * shall be made and served in compliance with section fifty-e of the general municipal law * * *
"Every action upon such claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law" (see, Piontka v Suffolk County Police Dept., supra; Mills v County of Monroe, supra). Thus, the plaintiff's failure to comply with General Municipal Law § 50-i renders the action time-barred.
Likewise, the plaintiff's failure to file a claim with the Federal Equal Employment Opportunity Commission within 300 days of the alleged discriminatory act bars his Federal age discrimination cause of action (see, 29 U.S.C. § 626 [d]). Balletta, J.P., Rosenblatt, Miller and Ritter, JJ., concur.