Opinion
Argued June 12, 2001.
July 30, 2001.
In an action, inter alia, to recover damages based on age discrimination under the New York State Human Rights Law (Executive Law art 15), the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered October 2, 2000, as denied its motion to dismiss the first and fourth causes of action in the complaint pursuant to CPLR 3211(a)(5) and (a)(7).
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N Y (Ricki E. Roer, Laura E. Evangelista, and Jeremy S. Salzman of counsel), for appellant.
Aaron Woskoff, Port Jefferson, N.Y., for respondent.
Before: GLORIA GOLDSTEIN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss pursuant to CPLR 3211, a court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every favorable inference (see, Leon v. Martinez, 84 N.Y.2d 83; Rovello v. Orofino Realty Co., 40 N.Y.2d 633; Roth v. Goldman, 254 A.D.2d 405, 406). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Leon v. Martinez, supra; Rovello v. Orofino Realty Co., supra, at 636). Moreover, a court may freely consider evidentiary material submitted on the motion to remedy any defects in the complaint (see, Leon v. Martinez, supra, at 88; Rovello v. Orofino Realty Co., supra, at 635; Roth v. Goldman, supra; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 162, cert denied 522 U.S. 967).
Viewing the plaintiff's complaint under these guidelines, we find that she has sufficiently stated causes of action to recover damages for discrimination under the New York State Human Rights Law (see, Executive Law art 15). Furthermore, her claim based on an alleged constructive discharge is also sufficient to withstand the motion to dismiss (see, Flaherty v. Metromail Corp., 235 F.3d 133). Finally, the Supreme Court properly rejected the defendant's argument that the plaintiff's claims are time-barred (see, Flaherty v. Metromail Corp., supra, at 137; Cornwell v. Robinson, 23 F.3d 694, 704).
GOLDSTEIN, J.P., McGINITY, LUCIANO and CRANE, JJ., concur.