OPINION AND ORDER

DENISE COTE, United States District Judge.

Plaintiff Kenneth Blackett ("Blackett") filed this action pro se on June 27, 2001, alleging that his former employer defendant Pathmark Stores, Inc. ("Pathmark") discriminated against him because of his disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA"). Plaintiff is a diabetic. Defendant's motion for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., is unopposed. For the reasons discussed below, defendant's motion is granted.

BACKGROUND

Because the present motion is unopposed by a pro se plaintiff, a detailed history of this action is in order. Plaintiff's complaint was filed on June 27, 2001, when it was received by this Court's Pro Se Office. Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (per curiam). In his complaint, Blackett alleges discrimination based on his diabetic condition. Plaintiff claims that his employment was unjustly terminated in 1995, and after being rehired, that he was falsely accused of theft in 1997. He alleges that his manager harassed him continually and, in retaliation for a complaint Blackett had filed with the New York State Division of Human Rights ("SDHR") in June 1998, refused to allow Blackett to switch from the night shift to the day shift, a switch which was necessary for his health. Ultimately, he was wrongfully fired a second time.

An initial pretrial conference was scheduled for January 11, 2002. Plaintiff was hospitalized for several days in January and requested an adjournment of the conference, which was rescheduled for March 8, 2002. At that conference, defendant argued that plaintiff's complaint was untimely because it had not been filed within ninety days of plaintiff's receipt of the Equal Employment Opportunity Commission's ("EEOC") right-to-sue letter. Plaintiff admitted that he had been told in an October 2000 meeting with the EEOC that a right-to-sue letter had been written, but maintained that he did not receive a copy until March 2001, and filed his complaint promptly after receiving the letter. The Court ordered limited discovery regarding the timeliness of Blackett's complaint, and issued a Scheduling Order requiring that this discovery be completed by May 10, and that any motion to dismiss be submitted by May 24. Plaintiff's opposition papers were due by June 21, and defendant's reply by June 28. The Order warned that failure to comply with any of the terms of the Order could result in dismissal of the action, entry of judgment by default or such other action as may be just in the circumstances.

On May 24, 2002, Pathmark served and filed a motion for summary judgment. Attached to defendant's motion was a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment, " informing the plaintiff, among other things, that he could not rest on his pleadings in opposition to any summary judgment motion brought by the defendant, and that failure to oppose such a motion could result in an entry of summary judgment against him. Plaintiff did not oppose the motion or seek an extension of time to do so. To date, plaintiff has submitted no papers in opposition to defendant's motion nor has he been in communication with the Court since a May 22 letter to the Court regarding a request by the defendant for costs incurred due to plaintiff's untimely cancellation of his deposition.

DISCUSSION

Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial, " and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.

Where, as here, a nonmoving pro se party has failed to submit papers in opposition to a motion for summary judgment, summary judgment may be granted as long as the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law, " and plaintiff has received notice that failure to submit evidence in opposition may result in dismissal of his case. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (citation omitted)

Blackett received notice from the defendant that failure to submit evidence in opposition to a summary judgment motion could result in judgment for defendant. Even in the presence of notice, "the issue in each case remains whether from all of the circumstances . . . it is reasonably apparent that the litigant understood the nature of the adversary's summary judgment motion and the consequences of not properly opposing it." Sawyer v. Am. Fed'n of Gov't Employees, 180 F.3d 31, 35 (2d Cir. 1999). It is reasonably apparent that Blackett understood his obligation to respond and his burden of producing evidence in opposition. The issue of the timeliness of the complaint was discussed at the first and only conference in this case. The notice given to plaintiff by Pathmark regarding his duty to respond to its motion is almost identical to a notice that has been approved by the Second Circuit.Champion, 76 F.3d at 485-86. In addition, Blackett has demonstrated an understanding of his obligation to communicate with the Court. He has communicated in a timely fashion with the Court on other occasions, for example, in requesting an adjournment of the initial pretrial conference.

II. Defendant's Rule 56.1 Statement

The facts recited in defendant's Rule 56.1 statement are deemed admitted by a plaintiff when no opposition has been filed. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001); see also S.D.N.Y. Civil Rule 56.2. Accordingly, defendant's Rule 56.1 statement is taken as true for the purposes of this motion, and dictates the following.

Plaintiff was employed by Pathmark as a store detective from 1985, until his employment was terminated in March 1999, for tardiness and poor attendance. Plaintiff filed a complaint with the SDHR on June 25, 1999, claiming that his employer denied him equal terms, conditions and privileges of employment, and discharged Blackett because of his disability and a prior complaint. Plaintiff's complaint was simultaneously filed with the EEOC.

In its "Determination and Order After Investigation, " issued on July 13, 2000, SDHR dismissed Blackett's complaint, finding no probable cause to conclude that Pathmark had engaged in any unlawful discriminatory employment practice. The EEOC issued a "Dismissal and Notice of Rights" letter to Blackett on October 3, 2000, adopting the findings of the SDHR and notifying plaintiff of his right to sue within ninety days. The EEOC mailed this letter to plaintiff via certified mail on October 3.

On October 10, 2000, plaintiff visited the EEOC offices at 7 World Trade Center to inquire about his case. He met with M. Santos ("Santos"), an EEOC supervisor, who checked the EEOC computer system and told plaintiff that he should receive something in the next couple of days or weeks. Santos also gave Blackett a note with a telephone number, advising Blackett to call him if he did not receive correspondence from the EEOC within two weeks.

On January 25, 2001, Blackett wrote the EEOC to inform the office that he had never received his right-to-sue letter. In a March 28, 2001 letter, the EEOC responded that it had sent a right-to-sue letter by certified mail on October 3, 2000. The EEOC attached a copy of the October 3 right-to-sue letter and the certified mail receipt. The plaintiff filed this action on June 27, 2001, 267 days after the issuance of the October 3, 2000 right-to-sue letter.

III. Analysis of Defendant's Summary Judgment Motion

Defendant moves to dismiss plaintiffs Title VII and ADA claims for failure to file his lawsuit in federal court within ninety days of receiving an EEOC right-to-sue letter. "In order to be timely, a claim under Title VII . . . must be filed within 90 days of the claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). Section 12117(a) of the ADA makes the procedural requirements set out in 42 U.S.C. § 2000e-5 applicable to ADA claims. 42 U.S.C. § 12117(a)

A notice mailed is presumed received three days after its mailing.Sherlock, 84 F.3d at 525; see also Felton v. New York Post, No. 90 Civ. 2254 (LBS), 1990 WL 113176, at *2 (S.D.N.Y. 1990). This presumption is rebuttable, however, and may be defeated "[i]f a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach [plaintiff] by mail." Sherlock, 84 F.3d at 526.

For this action to be timely, plaintiff would have had to receive the right-to-sue letter no earlier than March 26, 2001. The certified mail receipt shows that the EEOC's original right-to-sue letter was mailed on October 3 Plaintiff has not submitted any evidence that he did not receive the letter dated October 3 within days after it was mailed. See Hamilton v. Mt. Sinai Hosp., No. 97 Civ. 1756 (JSR), 1998 WL 43222, at *1 (S.D.N.Y. 1998). Applying the presumption of receipt within three days of mailing, plaintiff's time to file a federal lawsuit expired on January 4, 2001. Because plaintiff did not file the instant complaint within ninety days of receipt of the right-to-sue letter, the instant complaint is untimely and must be dismissed.

Equitable tolling is not appropriate because Blackett was not diligent in pursuing his federal rights. See South v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir. 1994); see also Pointer v. Columbia Univ., No. 95 Civ. 8418 (JFK), 1997 WL 86387, at *2 (S.D.N.Y. 1997). At the initial pretrial conference, plaintiff admitted that Santos told him during his October visit to the EEOC that the EEOC had a right-to-sue letter on file. Moreover, in March 2001, the EEOC sent Blackett a second copy of the October 3, 2000 right-to-sue letter. Despite that notice that the letter had been sent in the Fall and that his right to sue had expired as of January 4, 2001, Blackett waited until June 27, 2001 to file suit.

CONCLUSION

Defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close this case. Should plaintiff seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962)