Opinion
03-19-2015
Christine DERRICK, Plaintiff–Appellant, v. AMERICAN INTERNATIONAL GROUP, INC., et al., Defendants–Respondents.
Goldberg & Fliegel LLP, New York (Kenneth A. Goldberg of counsel), for appellant. Lipman & Plesur, LLP, Jericho (Robert D. Lipman of counsel), for respondents.
Goldberg & Fliegel LLP, New York (Kenneth A. Goldberg of counsel), for appellant.
Lipman & Plesur, LLP, Jericho (Robert D. Lipman of counsel), for respondents.
Opinion Order, Supreme Court, New York County (Richard F. Braun, J.), entered October 18, 2013, which granted defendants' motion to dismiss the third amended complaint, and order (same court and Justice), entered October 18, 2013, which denied plaintiff's motion for leave to file a fifth amended complaint, unanimously reversed, on the law, without costs, plaintiff's motion for leave to serve her proposed fifth amended complaint granted, and defendants' motion to dismiss the third amended complaint denied as academic. The determination of the Unemployment Insurance Appeal Board, denying plaintiff's claim for unemployment insurance benefits, does not preclude her from bringing any of the claims asserted herein (see Labor Law § 623[2] ; Silberzweig v. Doherty, 76 A.D.3d 915, 916, 908 N.Y.S.2d 39 [1st Dept.2010], lv. denied 16 N.Y.3d 709, 2011 WL 1161728 [2011] ). According plaintiff's submissions “their most favorable intendment” for purposes of defendants' CPLR 3211(a)(5) motion to dismiss (Arrington v. New York Times Co., 55 N.Y.2d 433, 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319 [1982],cert. denied 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 [1983] ), her claims under the New York State and City Human Rights Laws, governed by a three-year limitations period, are timely in the present procedural posture (see CPLR 214[2] ; Administrative Code of City of N.Y. § 8–502[d]; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] ). Plaintiff's cause of action under 42 U.S.C. § 1981, governed by a four-year limitations period, relates back to plaintiff's original timely pleading and is, therefore, also timely asserted (see CPLR 203[f] ; 28 U.S.C. § 1658 [a]; Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 372–373, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 [2004] ). Plaintiff has also adequately alleged claims under Section 1981 for invidious discrimination and retaliation (see Vivenzio v. City of Syracuse, 611 F.3d 98, 106 [2d Cir.2010] ; McDowell v. North Shore–Long Is. Jewish Health Sys., 839 F.Supp.2d 562, 566 [E.D.N.Y.2012] ).
Since the claims asserted by plaintiff in her proposed fifth amended complaint are sufficiently meritorious to warrant granting leave to amend (see CPLR 3025 [b] ), it is not necessary to consider the remaining discrete claims in her superseded third amended complaint. Review of those claims is further barred in light of the parties' so-ordered stipulation, directing that the third amended complaint be considered only in the event that those asserted in the fifth amended complaint were insufficient.
MAZZARELLI, J.P., DeGRASSE, RICHTER, FEINMAN, JJ., concur.