The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 2-7; 14 Answering Papers 15-17; 19 Reply 20-21; 22-23 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Before the Court is an action that is ultimately about sex and age discrimination in the Deer Park Union Free School District (District), but the issue implicated in this motion and cross-motion is far less dramatic — accrual. The question for the Court is a simple one, did plaintiff Dipietrantonio, a retired teacher, timely commence her action against defendants District and its administrators? The answer to that question is no, accordingly, this Court grants the defendants’ motion and denies the plaintiff’s cross-motion. Naturally, this Court takes no position on the merits of plaintiff’s claim. Therefore, the action is dismissed in its entirety. Defendants District, School Superintendent Eva J Demyen (Superintendent), and Principal Eliana Levey (individually Principal; collectively with District and Superintendent the Defendants) move this Court for an Order granting dismissal of the Complaint pursuant to CPLR §3211 (a)(1)(3) or (7) (Motion Sequence 001). Plaintiff Dipietrantonio cross-moves this Court for an Order pursuant to CPLR §3025 granting plaintiff leave to amend her complaint and to file a Late Notice of Claim (Motion sequence 002). BACKGROUND Plaintiff was a special education teacher at a middle school in the District, and as relevant here is female and is over the age of forty (40) throughout the course of the complained of conduct. In 2010, plaintiff complained to the Principal that male teachers were consistently given additional compensated assignments. Plaintiff alleges this was discriminatory behavior and when she complained of it to the Principal she was told to “Stop complaining Carole,” or words to that effect. In late 2014 plaintiff suffered a work-related injury that caused her to take disability in the first half of 2015. At that time plaintiff was training two younger female teachers to advise the District’s student council, a position plaintiff held and was compensated for. Plaintiff applied to renew her advising position with the District’s student council for the upcoming school year, however, the Defendants chose the younger trainees. In June of 2015 plaintiff was reassigned by Defendants from the middle school to a religious school and the District’s high school. Plaintiff sent the Superintendent a letter dated January 29, 2016 stating that “[she] will resign for the purpose of retirement from the Deer Park School District effective June 30, 2016.” That letter is time stamped the same day and a marking indicates it was “B[oard] O[f] E[ducation] approved 2/9/16.” Plaintiff filed her Verified Complaint on June 9, 2017 setting out a sole cause of action arising out of the alleged deprivation of rights secured by New York State Executive Law §296 for sex and age discrimination as well as retaliation. In short, the Defendants’ offending behavior constructively forced the plaintiff to retire. Defendants’ then moved this Court to dismiss the Verified Complaint as untimely, failing to state a cause of action, and that there was a defense on documentary evidence. In support of that motion Defendants submitted the Verified Complaint and plaintiff’s letter to the superintendent. Plaintiff opposed the motion and cross moved this Court for leave to file an Amended Verified Complaint and a Late Notice of Claim. In support of the motion plaintiff submitted proposed copies of an amended complaint and late notice of complaint. Both parties replied. DISCUSSION The court’s task when determining a motion to dismiss brought under CPLR §3211, is to “determine whether plaintiff’s pleadings state a cause of action;” if from the four corners of the pleadings, there are factual allegations “which taken together manifest any cause of action cognizable at law,” the court will deny the motion (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-52 [2002] [internal quotation marks and citation omitted]). The complaint s liberally construe[d],” and the alleged facts are considered true, as are any submission in opposition to the motion to dismiss (Id. at 152). The plaintiff is accorded “the benefit of every possible favorable inference” (Id., citing Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). The question s notably not whether a plaintiff will ultimately succeed in establishing the allegations (see Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013]). Where the pleading is defective on its face, the court will grant the motion to dismiss pursuant to §CPLR 3211 (a)(7) (see Natixis Real Estate Capital Trust 2007-HE2 v. Natixis Real Estate Holdings, LLC, 149 AD3d 127, 135 [1st Dept 2017]). New York State Executive Law §296 sets forth unlawful discriminatory practices by an employer against an employee. In the context of its application against a school district the Court turns to the “clear and unambiguous language” of Education Law §3813[2-b] to find the “statute of limitation on such a claim is one year” (Amorosi v. South Colonie Independent Central School District, 9 NY3d 367, 369 [2007]). Therefore, this case hinges on the moment when the claim began to accrue against the Defendants. Plaintiff’s letter to the District notifying it of her retirement is that critical moment. Delivered to the District on January 29, 2016 and approved by the Board of Education on February 9, 2016, the plaintiff filed her complaint on June 9, 2017 more than a year from either date. The court concludes that plaintiff’s complaint, filed more than a year after that letter was delivered and approved is thus untimely. Plaintiff, by her attorney’s affirmation, states that the letter is a notice to retire and was written according to provisions within the District’s agreement with the teachers union. The plaintiff provides no policy, agreement or other documentation as to this claim. “Such an affirmation by counsel is without evidentiary value and thus unavailing” (Zuckerman v. City of New York, 49 NY2d 557, 563 [1980]; see also Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 NY2d 496, 500 [1977]; Israelson v. Rubin, 20 AD2d 668 [2d Dept 1964], affd 14 NY2d 887; Lamberta v. Long Is. R.R., 51 AD2d 730 [2d Dept 19761). Public Officers Law §31(4), entitled "resignations", provides a resignation may not be withdrawn except by consent of the body with which it is filed. The record reflects plaintiff never requested the District rescind or withdraw her letter which was personally served on January 29, 2016 and approved on February 9, 2016. As to plaintiff's claim of constructive discharge the Court finds that the date of the letter again becomes the focal point. Constructive discharge occurs when an employer makes working conditions "so intolerable that [an employee] is forced into an involuntary resignation.” (see Pena v. Brattleboro Retreat, 702 F.2d 322, 325 [2d Cir. 1983]; Stetson v. NYNEX Service Co., 995 F.2d 355 [2d Cir. 1993]). The proper focus in determining the accrual date of a cause of action for employment discrimination “is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful.” (Delaware State College v. Ricks, 449 US 250, 258 [1980]). A claim of constructive discharge occurs, at the latest, when the employee submits his or her resignation — irrespective of the effective date of employment termination. (Id.) Even under a theory of constructive discharge the accrual began at the time the letter was submitted or approved. The complaint was filed more than a year from either date. Therefore, the constructive discharge claim is unavailing. Section 3813 of the Education Law provides in relevant part, “[n]o action or special proceeding, for any cause whatever,…shall be prosecuted or maintained against any school district…unless it shall appear by and as an allegation in the complaint…a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim” (Education Law §3813[1]). Plaintiff failed to timely serve a notice of claim upon the school district to satisfy 3813. The plaintiff now asks this Court to grant an extension to file a late notice of claim. To be sure, Section 3813(2-a) allows the Court to grant an extension for filling notice, the extension cannot “exceed the time limited for the commencement of an action by the claimant.” (Education Law §3813[2-a]). State discrimination and retaliation claims carry a one-year statute of limitations. (Amorosi v. South Colonie Independent Central School District, 9 NY3d 367, 370 [2007]). The filing of the notice of claim does not toll the statute of limitation (Id.). Accordingly, plaintiff’s claims are barred as untimely under Section 3813(1) and he Court is without jurisdiction to grant plaintiff’s request for an extension. CONCLUSION Because this action was commenced more than a year after the statute of limitations began to accrue against the Defendants it is untimely. Furthermore, the Court lacks the ability to grant plaintiff’s request for an extension to file a late notice of claim. Unfortunately, for plaintiff, time is not on her side; her failure to timely file means her allegations of sex an age discrimination will not see the inside of a courtroom because the Court lacks jurisdiction. Although the result is in apparent contradiction with the policy of eliminating employment discrimination in the public sector, the clear and unambiguous language of Education Law §3813 [2-b] leaves this Court without discretion to grant the plaintiff’s application. The ball lies in the Legislature’s court. Upon the foregoing; it is ORDERED that defendants; motion seeking dismissal of the complaint pursuant to CPLR §3211 as untimely is granted as detailed above; and it is further, ORDERED that plaintiff’s cross-motion is denied and the case is dismissed in its entirety; and it is further, ORDERED that counsel for the defendants is hereby directed to serve a copy of this decision and order with notice of entry on counsel for plaintiff. The foregoing constitutes the decision of this Court. Dated: September 9, 2019 Riverhead, NY FINAL DISPOSITION [X] NON-FINAL DISPOSITION [ ]
