| Kimmel v State of New York |
| 2008 NY Slip Op 02277 [49 AD3d 1210] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Betty L. Kimmel, Respondent, v State of New York et al.,Appellants, et al., Defendants. |
—[*1] Harriet L. Zunno, Hilton, for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredMarch 26, 2007. The judgment awarded plaintiff damages against defendants State of New Yorkand New York State Division of State Police upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff, a former State Trooper, commenced this action in 1995 alleging thatshe was subjected to various acts of sexual discrimination, sexual harassment and retaliation andwas exposed to a hostile work environment from 1979 to 1994. On appeal from a judgmentawarding plaintiff damages after a jury trial, defendants-appellants (defendants) contend thatSupreme Court erred in denying that part of their motion pursuant to CPLR 3211 (a) (5) seekingdismissal of the complaint as time-barred insofar as it alleges violations of the Human RightsLaw (Executive Law art 15; see CPLR 214 [2]). As a preliminary matter, we note thatdefendants' appeal from the judgment brings up for review "any non-final judgment or orderwhich necessarily affects the final judgment" (CPLR 5501 [a] [1]; see generally Matter ofAho, 39 NY2d 241, 248 [1976]), and thus we may properly review the contention ofdefendants with respect to the order denying that part of their motion entered on January 16,1996. Nevertheless, we reject that contention. Accepting the allegations in the complaint as trueand according plaintiff the benefit of every favorable inference, as we must in reviewing that partof defendants' motion pursuant to CPLR 3211 (a) (5) (see 190 Murray St. Assoc., LLC v City of Rochester, 19 AD3d1116 [2005]), we conclude that the allegations in the complaint do not concern severaldiscrete acts but, rather, they concern a hostile work environment, i.e., "a series of separate actsthat collectively constitute one 'unlawful employment practice' " (National Railroad PassengerCorporation v Morgan, 536 US 101, 117 [2002]). We further conclude that plaintiff hasalleged a continuing violation based on the allegations of " 'specific and related instances ofdiscrimination [that were] permitted by [defendants] to continue unremedied for so long as toamount to a discriminatory policy or practice,' " and thus the three-year limitations period did notbegin to run until the last discriminatory act, which allegedly occurred in December 1994(Clark v State of New York[*2][appeal No. 2], 302 AD2d942, 945 [2003]). Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.