| Tong v Target, Inc. |
| 2011 NY Slip Op 03585 [83 AD3d 1046] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Dickon Tong, Appellant, v Target, Inc., et al.,Respondents. |
—[*1] Simmons Jannace, LLP, Syosset, N.Y. (Sal F. DeLuca of counsel), for respondents.
In an action to recover damages for personal injuries and for racial discrimination pursuant to42 USC § 1981, the plaintiff appeals from an order of the Supreme Court, RocklandCounty (Berliner, J.), entered August 27, 2010, which granted the defendants' motion pursuant toCPLR 3211 (a) (5) and (7) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of thedefendants' motion which was to dismiss the first cause of action as barred by the one year statuteof limitations applicable to intentional torts (see CPLR 215 [3]). In determining whichlimitations period is applicable to a given claim, the court must look to the substance of theallegations rather than to the characterization of those allegations by the parties (see WesternElec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Doe v Jacobs, 19 AD3d 641, 642[2005]; Rutzinger v Lewis, 302 AD2d 653, 654 [2003]). The factual allegations of thefirst cause of action clearly set forth only intentional tortious conduct on the part of thedefendants (see e.g. Cagliostro v Madison Sq. Garden, Inc., 73 AD3d 534, 535 [2010];Schetzen v Robotsis, 273 AD2d 220, 220-221 [2000]; Friedman v Gallinelli, 240AD2d 699, 700 [1997]; Locke v North Gateway Rest., 233 AD2d 578, 579 [1996]), andthe cause of action therefore was governed by the one-year limitations period, which had expiredprior to commencement of this action. The plaintiff could not avoid the running of the limitationsperiod merely by attempting to couch the claim as one sounding in negligence (see Smith vCounty of Erie, 295 AD2d 1010, 1010-1011 [2002]; Wertzberger v City of NewYork, 254 AD2d 352 [1998]; Mazzaferro v Albany Motel Enters., 127 AD2d 374,376-377 [1987]).
The Supreme Court also properly granted that branch of the defendants' motion pursuant toCPLR 3211 (a) (7) which was to dismiss the second cause of action to recover damages for racialdiscrimination under 42 USC § 1981. "To establish a claim under § 1981, a plaintiffmust allege facts in support of the following elements: (1) the plaintiff is a member of a racialminority; (2) an intent to discriminate on the basis of race by the defendant; and (3) thediscrimination concerned one or more of the activities enumerated in the statute" (Mian vDonaldson, Lufkin & Jenrette Sec. Corp., 7 F3d 1085, 1087 [1993], cert denied 516US 824 [1995]). Here, the complaint is totally bereft of any factual allegations to support [*2]the second element of intent to discriminate on the basis of race(see e.g. Yusuf v Vassar Coll., 35 F3d 709, 713 [1994]; Mian v Donaldson, Lufkin &Jenrette Sec. Corp., 7 F3d at 1087). Accordingly, the plaintiff's conclusory and speculativeassertions were inadequate to state a cause of action to recover damages for racial discriminationunder 42 USC § 1981. Mastro, J.P., Rivera, Austin and Roman, JJ., concur.