Law School Case Brief
Dana v. Oak Park Marina - 230 A.D.2d 204, 660 N.Y.S.2d 906 (App. Div. 1997)
When a plaintiff seeks to apply the continuous tort doctrine, and alleges a continued series of extreme and outrageous acts each of which would be independently actionable, the statute of limitations does not begin to run until the last actionable act. To the extent the decision of the Supreme Court of New York, Appellate Division, Fourth Department, in Foley v Mobil Chem. Co. (214 AD2d 1003) may be interpreted to hold that the continuous tort doctrine does not apply to a cause of action for intentional infliction of emotional distress, it is no longer to be followed.
Plaintiff marina patron alleged that female patrons in various stages of undress were videotaped in the ladies rest room without their knowledge or consent; that the videotapes were viewed by the individual defendants and others; and that the tapes were displayed for purposes of trade. Plaintiff's complaint asserts causes of action for negligence in inflicting severe mental and emotional distress by failing to ensure the privacy of patrons and guests utilizing the ladies' rest room, reckless infliction of emotional distress, sex discrimination in violation of section 296 of the Executive Law, violation of Civil Rights Law § 51, and breach of contract. Defendants filed a motion to dismiss. The Supreme Court granted the motion insofar as it sought dismissal of the cause of action for sex discrimination and denied the remainder of the motion. Defendants appealed. Defendants contend that the alleged violation of section 51 of the Civil Rights Law is time barred because defendants ceased videotaping after Labor Day weekend in 1994.
Did plaintiff file the action for defendant's violation of section 51 of the Civil Rights Law beyond the prescribed one year period?
The Court agreed with defendants that the one-year Statute of Limitations applies to the cause of action. It concluded, however, that the cause of action accrued when the injury in fact occurred, i.e., when the videotapes were displayed to third persons for purposes of trade. Because defendants failed to establish that the videotapes were displayed to third persons more than a year before commencement of the action, the court properly denied their motion to dismiss the cause of action as time barred.
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