Ross v. State Of New York et al

Filing 43

OPINION AND ORDER re: 39 MOTION for Reconsideration re; 38 Memorandum & Opinion filed by City University of New York., Stefan Becker answer due 5/6/2016; John Cirace answer due 5/6/2016; City University of New York answer due 5 /6/2016; Ricardo Fernandez answer due 5/6/2016; Dene Hurley answer due 5/6/2016; Orhan Kayaalp answer due 5/6/2016; Lehman College answer due 5/6/2016; Mary Rogan answer due 5/6/2016; State Of New York answer due 5/6/2016; Eric Washington answer due 5/6/2016; Robert Whittaker answer due 5/6/2016. Accordingly, CUNY's motion for reconsideration is GRANTED and Rosss Title VII claim is DISMISSED. Pursuant to the order issued on March 2, 2016, the remaining Defendants shall respond to the Complaint on or before May 6, 2016. (See Dkt. No. 42.) The Clerk of Court is directed to close the motion at docket number 39. SO ORDERED. (Signed by Judge J. Paul Oetken on 4/06/2016) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARSHALL ROSS,
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Plaintiff,
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THE STATE OF NEW YORK et al.,
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Defendants. :
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15-CV-3286 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Marshall Ross filed this action on April 29, 2015. On February 16, 2016, the
Court dismissed all of Ross’s claims except his religious discrimination claim against the City
University of New York (“CUNY”) under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e, et seq., and his official capacity claims against Ricardo Fernandez, Dene
Hurley, and Stefan Becker under Title I of the Americans with Disability Act, 42 U.S.C.
§ 12101, et seq. (Dkt. No. 38.) CUNY moves for reconsideration of the Title VII ruling on the
ground that Ross’s claim is time-barred. (Dkt. No. 39.) Ross has not opposed CUNY’s motion.
“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol.
Grp., Inc., 818 F. Supp. 2d 678, 695 (S.D.N.Y. 2011) (citation and quotations omitted). To
prevail, the movant must demonstrate either (i) an intervening change in controlling law; (ii) the
availability of new evidence; or (iii) the need to correct clear error or prevent manifest injustice.
Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 580–81 (S.D.N.Y. 2013) (citation omitted).
Ordinarily, the final showing—manifest injustice—requires that the movant demonstrate that the

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Court overlooked a key fact in the record or a controlling point of law. See Cioce v. County of
Westchester, 128 Fed. App’x 181, 185 (2d Cir. 2005).
Familiarity with the background of this case is presumed. (See Dkt. No. 38.) For these
purposes, it is relevant that Ross (1) asserts a Title VII claim based on interactions he had with
CUNY officials before May 22, 2013, and (2) filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”) on May 28, 2014, more than a year after the
allegedly discriminatory conduct. (See Dkt. Nos. 1 at 4; 20-14 at 4, 38 at 3-4, 40 at 2.) CUNY
properly notes that, to bring a timely Title VII claim, a plaintiff or his representative must file a
charge with the EEOC “within three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1); see Cayemittes v. City of New York Dep’t of
Hous. Preservation and Dev., No. 13-4071-CV, 2016 WL 860063, at *1 (2d Cir. Mar. 7, 2016).
Because the February 16, 2016 order did not address the statute of limitations, reconsideration is
warranted. And because Ross’s Title VII claim is untimely, that claim should be dismissed.
Accordingly, CUNY’s motion for reconsideration is GRANTED and Ross’s Title VII
claim is DISMISSED. Pursuant to the order issued on March 2, 2016, the remaining Defendants
shall respond to the Complaint on or before May 6, 2016. (See Dkt. No. 42.)
The Clerk of Court is directed to close the motion at docket number 39.
SO ORDERED.
Dated: April 6, 2016
New York, New York

____________________________________
J. PAUL OETKEN
United States District Judge

COPY MAILED TO PRO SE PARTY BY CHAMBERS
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