Summary
concluding that plaintiff's pursuit of a complaint with the union's grievance committee did not toll the statute of limitations
Summary of this case from Benjamin v. AhernOpinion
October 1, 1999.
In an action to recover damages pursuant to Executive Law § 296 for alleged employment discrimination, the plaintiff appeals from an order of the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly found that the plaintiff's action to recover damages for unlawful discriminatory practices was time-barred by the three-year Statute of Limitations set forth in CPLR 214 (2) (see, Koerner v. State of New York-Pilgrim Psychiatric Ctr., 62 N.Y.2d 442, 446; Alaimo v. New York City Dept. of Sanitation, 203 A.D.2d 501; Yasinosky v. New York City Tr. Auth., 193 A.D.2d 731). While the plaintiff exercised his right to pursue a grievance proceeding against the defendant as permitted by the parties' collective bargaining agreement, the plaintiff's invocation of this alternate remedy did not toll the Statute of Limitations (see, Matter of Queensborough Community Coll. v. State Human Rights Appeal Bd., 41 N.Y.2d 626; Roufaiel v. Ithaca Coll., 241 A.D.2d 865; Bitterman v. Herricks Teachers' Assn., 220 A.D.2d 473; Matter of Vasbinder v. Hartnett, 119 A.D.2d 894).
The plaintiff's contention that the defendant should be equitably estopped from relying upon the Statute of Limitations is raised for the first time on appeal, and is not properly before us (see, Gatz v. Otis Ford, 262 A.D.2d 280; Baine v. Town of Oyster Bay, 258 A.D.2d 608; Rotundo v. S C Magnetic Resonance Imaging, 255 A.D.2d 573). In any event, the record is devoid of evidence showing that the defendant engaged in conduct which lulled the plaintiff into inactivity in order to allow the Statute of Limitations to expire (see, Matter of Davis v. Peterson, 254 A.D.2d 287; North Side Sav. Bank v. Town of Hempstead, 236 A.D.2d 456).
RITTER, J.P., KRAUSMAN, FLORIO and FEUERSTEIN, JJ., concur.