Leslie Moore Mira v. Argus Media

222 A.D.3d 528

199 N.Y.S.3d 495 (Mem)

Leslie Moore MIRA, Plaintiff–Appellant,

v.Argus MEDIA et al., Defendants–Respondents.

931 &, M-4603

Index No. 654258/20

Case No. 2022–05497

Supreme Court, Appellate Division, First Department, New York.

Entered: December 19, 2023

Leslie Moore Mira, appellant pro se.

Foster Garvey PC, New York (Jeanne C. Barenholtz of counsel), for respondents.

Kapnick, J.P., Gesmer, Scarpulla, Rodriguez, O'Neill Levy, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered June 3, 2022, which granted defendants' motion to dismiss, unanimously affirmed, without costs.

Plaintiff, a Mexican–American woman, was fired from her job with defendant Argus Media in April 2014. In December 2015, she filed a federal action pro se against Argus and three of its employees in the United States District Court for the Southern District of New York, asserting causes of action under Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. Upon defendants' motion to dismiss for failure to state a claim, the District Court dismissed the Title VII claims on the merits and declined to exercise supplemental jurisdiction over the State and City claims, dismissing them without prejudice ( Mira v. Argus Media, 2017 WL 1184302, *9, 2017 U.S. Dist. LEXIS 46691 [S.D.N.Y., Mar. 29, 2017, No. 15–cv–9990 (RJS)]. The District Court later denied plaintiff's motion to further amend the complaint ( Mira v. Argus Media, 2017 WL 11604293, *4, 2017 U.S. Dist LEXIS 233862 [S.D.N.Y., May 16, 2017, No. 15–cv–9990 (RJS)]. On September 25, 2018, the Second Circuit dismissed plaintiff's direct appeal ( Mira v. Argus Media, 2018 WL 11298793, *1, 2018 U.S. App. LEXIS 37679 *1 [2d Cir., Sept. 25, 2018, No. 17–1929] ). Plaintiff's motion for reconsideration before the Second Circuit was denied on January 18, 2019, and the United States Supreme Court denied certiorari on October 7, 2019 (see Mira v. Argus Media, ––– U.S. ––––, 140 S.Ct. 228, 205 L.Ed.2d 135 [2019] ).

On June 7, 2020, plaintiff commenced this action against Argus and the three individual defendants, as well as three more individuals with whom she worked at Argus. Plaintiff asserted the same State and City Human Rights Law claims as she had asserted in the federal action and added several new tort causes of action, including one for intentional infliction of emotional distress.

Supreme Court properly dismissed this action as untimely. Under the tolling provision of CPLR 205(a), a plaintiff may file a new action after a nonmerits dismissal even if the original statute of limitations has expired, but must do so within six months of the dismissal. Here, the federal court's dismissal of the state law claims was not on the merits, so plaintiff was permitted to file a new action under CPLR 205(a). However, the six-month period in which plaintiff was obliged to file and serve the action began to run "when appeals as of right [were] exhausted" — that is, on September 25, 2018, when the Second Circuit dismissed the appeal — and expired March 25, 2019 ( Malay v. City of Syracuse, 25 N.Y.3d 323, 328, 12 N.Y.S.3d 1, 33 N.E.3d 1270 [2015] [internal quotation marks omitted]; see Favourite Ltd. v. Cico, 208 A.D.3d 99, 112–114, 171 N.Y.S.3d 67 [1st Dept. 2022] ). She did not commence this action until June 2020, more than a year later.

Discretionary extensions of time to effect service under CPLR 306–b do not "negate or nullify" the filing and service requirements of CPLR 205(a) ( Pyne v. 20 E. 35 Owners Corp., 267 A.D.2d 168, 169, 700 N.Y.S.2d 450 [1st Dept. 1999] ; accord Silber v. Stein, 287 A.D.2d 494, 495, 731 N.Y.S.2d 227 [2d Dept. 2001] ). Moreover, the six-month extension provision does not apply to the three individuals newly named in this action, over whom plaintiff had never attempted to establish personal jurisdiction (see Cazsador v. Greene Cent. School, 243 A.D.2d 867, 868–869, 663 N.Y.S.2d 310 [3d Dept. 1997], lv denied ...