Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

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Failure to establish due diligence in ascertaining thelimitations period for commencing the action fatal to complainant’s untimely petitionPichardo v New York City Dept. of Educ., 2012 NY SlipOp 07071, Appellate Division, First Department
Supreme Court, New York County, granted the New York CityDepartment of Education’s motion to dismiss the complaint filed by KarienPichardo’s against them as time-barred.
The court was not persuaded by Pichardo’s claim that theDepartment had “contributed to her delay in commencing the action” and thattherefore should be estopped from asserting a statute of limitations defensewith respect to her claims of gender and disability discrimination, sexualharassment, retaliation, and breach of contract.
The Appellate Division agreed, noting that Pichardo hadfailed to establish due diligence on her part in ascertaining the limitationsperiod for commencing the action.
The court explained that Pichardo’s “non-tort claims”accrued on the date of her termination as a probationary teacher while herallegations of “negligent supervision and hiring and negligent infliction ofemotional distress claims accrued on the date of the last alleged underlyingact.” Further, the Appellate Division ruled that her “tort claims” were barredas well.
Once aspect of Pichardo’s argument alleged a “continuing”action that might preserve certain claims in her petition. The AppellateDivision’s ruling, however, noted that “in opposition to [the Department’s]motion [to dismiss her petition], [Pichardo] failed to avail herself of theopportunity to submit an affidavit or other evidence to amplify the allegationsin her complaint and establish the timeliness of her claims.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07071.htm