Tillery v. NYS Office of Alcoholism and Substance Abuse Service et al
Filing
45
DECISION and ORDERED that Defendants Second Motion (Dkt. No. 37) to dismiss is DENIED. Signed by Senior Judge Lawrence E. Kahn on January 08, 2015. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHELE TILLERY,
Plaintiff,
-against-
1:13-CV-1528 (LEK/RFT)
NYC OFFICE OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES, et al.,
Defendants.
DECISION and ORDER
This matter returns to the Court on Defendants Laurie Felter, Steven Mantor, Michael
Lawler (together, the “Individual Defendants”), and the New York State Office of Alcoholism and
Substance Abuse Services (“OASAS”) (collectively, “Defendants”) Second Motion to dismiss
Plaintiff Michele Tillery’s (“Plaintiff”) Amended Complaint. Dkt. Nos. 19 (“Amended
Complaint”); 37 (“Second Motion”); 37-1 (“Memorandum”). On May 30, 2014, the Court granted
Defendants’ First Motion to dismiss to the extent it sought to assert Title VII claims against the
Individual Defendants and New York State Human Rights Law (“HRL”) claims against OASAS,
and denied the remainder of the Motion. Dkt. Nos. 14 (“First Motion”); 36 (“May Order”). For the
following reasons, Defendants’ Motion is denied.
Defendants argue that the Amended Complaint should be dismissed for failure to commence
the action within the ninety day statutory filing period after receiving a right-to-sue notice from the
Equal Employment Opportunity Commission (“EEOC”), as required by 42 U.S.C. § 2000e-5(f)(1).
Mem. at 1. Plaintiff, however, states that she received the right-to-sue notice from the EEOC on
October 1, 2012. Am. Compl. at 4. The right-to-sue notice itself is dated September 27, 2012. Dkt.
No. 1 (“Complaint”) at 13. Unless otherwise challenged, “it may be assumed . . . that a notice
provided by a governmental agency has been mailed on the date shown on the notice.” Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996). Furthermore, absent evidence to the
contrary, it is also assumed that a recipient receives a mailed document three days after its mailing
date. Id. at 525. Therefore, it is assumed that Plaintiff received the right-to-sue notice on
September 30, 2012.
Given that Plaintiff received her right-to-sue notice on September 30, 2012, the 90-day
statutory period was set to expire on December 29, 2012. However, December 29, 2012, was a
Saturday. When calculating any statutory time period, federal courts must extend the time period so
that it does not end on a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a). Therefore, the 90day statutory period in the present case would have ended on Monday, December 31, 2012.
Plaintiff filed the Complaint on December 29, 2012. Compl. at 1, 4. Although the Public
Access to Court Electronic Records (“PACER”) system attached a filing date of January 2, 2013 to
Plaintiff’s Complaint, Id. at 1, the Complaint is clearly stamped as “received” by the U.S. District
Court for the Southern District of New York on “2012 Dec 29 P 11:02.” Id. The Complaint was
deposited in the district court’s night depository box, pursuant to the Local Rules for the Southern
District. Joint Local Civil Rules United States District Courts for the Southern and Eastern Districts
of New York 1.2. According to the Southern District’s Local Rules, a document deposited in the
night depository box “is considered to have been filed in the District Court as of the date stamped
thereon, which shall be deemed presumptively correct.” Rodriguez v. City of New York, No. 10
Civ. 1849, 2011 WL 4344057, at *6 (S.D.N.Y. Sept. 7, 2011). Therefore, Plaintiff timely filed her
Complaint, and the Second Motion is denied.
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V.
CONCLUSION
Accordingly, it is hereby:
ORDERED that Defendants’ Second Motion (Dkt. No. 37) to dismiss is DENIED; and it is
further
ORDERED that the Clerk serve a copy of this Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
January 08, 2015
Albany, New York
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