ALIMO v. OFF-TRACK BETTING CORPORATION

The alleged assault upon plaintiff by co-worker Luna and the offensive song sung by co-worker Neglia, both in 1996, were not part of a "continuing violation" in connection with the purported disparate treatment of plaintiff by OTB from February to June 1994. Plaintiff's Civil Rights Act of 1964 title VII ( 42 U.S.C. § 2000e et seq.) claims based on the 1994 treatment were properly dismissed as time-barred, since plaintiff did not file a discrimination complaint with the Equal Employment Opportunity Commission of the United States Department of Justice until May 1996, well after the 300-day period for the filing of such a complaint had expired ( see, Lambert v. Genesee Hosp., 10 F.3d 46, 53, cert denied 511 U.S. 1052). While plaintiff's discrimination claim asserted under State and local statutes (Executive Law § 296; Administrative Code of City of N.Y. tit 8) is subject to a three-year Statute of Limitations and is time-barred only insofar as the complained of conduct took place outside that period ( see, CPLR 214; Koerner v. State of New York, 62 N.Y.2d 442, 445-446), we nonetheless affirm the dismissal of the claim since plaintiff has failed sufficiently to allege facts indicative of disparate treatment based on gender or national origin ( see, Tucker v. Battery Park City Parks Corp., 227 A.D.2d 318).

Plaintiff's State and local claims alleging that the conduct of Luna and Neglia caused her to be subjected to a hostile work environment were also properly dismissed since there is no allegation that the workplace hostility about which plaintiff complains was caused or countenanced by plaintiff's employer ( see, Tomka v. Seiler Corp., 66 F.3d 1295, 1305; see also, Walsh v. Covenant House, 244 A.D.2d 214). Luna and Neglia were merely plaintiff's co-workers, and defendant Menies, who plaintiff alleges knew about her mistreatment but took no remedial action, was not a supervisor.

Concur — Sullivan, J. P., Rosenberger, Nardelli and Rubin, JJ.