Plaintiff, Ellen Lehrman, commenced employment with the Board of Education of the City School District of the City of New York, operating (and sued herein) as the New York City Department of Education (the "DOE") as a substitute teacher in or about the late 1970's, and in or about 1991, she commenced full-time employment with the DOE as a Common Branch teacher and reading specialist. She served as full-time reading specialist at PS 135Q, the Bellaire School in Queens, New York, from 1992 until 2009. In 2009, she (then aged 56) was "excessed" and classified as an Absent Teacher Reserve ("ATR") teacher. According to the Ms. Lehrman, as an ATR, her employment conditions and responsibilities changed substantially, as she was now treated as a substitute teacher, often finding out her school assignment for the day that same morning and having no prior knowledge of the students she was assigned to and their individual needs. Further, she was assigned to a different supervisor yearly, forced to teach subjects outside her appointed license, and was intentionally rotated among the most dangerous schools in New York City.

Plaintiff alleges that she suffered from two medical conditions that rendered her disabled, to wit: Planter fasciitis and anxiety. First, Plaintiff alleges that she suffered from plantar fasciitis, a condition which she claims affected her ability to walk, stand for long-periods of time, and carry heavy items. She requested from the DOE a medical accommodation "to be assigned to only schools that had elevators and/or to teach in first-floor classrooms," which was approved. Plaintiff, however, alleges that the DOE discriminated against her because her teaching duties "obligated her to carry a 20-25 pound bag of materials for all grades every 45 minutes to another class," which allegedly exacerbated her purported disability. Plaintiff also alleges that the DOE revealed Plaintiff s disability to other teachers. Plaintiff also alleges that she suffered anxiety as a result, in whole or part, of "being assaulted and or battered four different times while teaching a middle school," and that her request for an accommodation not to be assigned to middle schools was denied by the DOE. Finally, Plaintiff alleges that on or about December 16, 2014, she was assaulted and battered by a first grade student who waived his hands and hit her. At the time, she was assigned to PS/IS 27lQ, where Chayvonne Harper ("Harper") (the DOE and Harper, collectively referred to as the "Defendants") was the principal. She further alleges that the student had a "propensity for violence" of which Defendants were aware, and that Plaintiff was not provided with adequate protection from the student .

Plaintiff served a notice of claim on the DOE on or about March 16,2015 (the "Notice of Claim"), alleging, inter alia, assault and battery (vicarious liability), discrimination on the basis of age, and discrimination on the basis of disability (plantar fasciitis). Plaintiff filed her Verified Complaint in this action on December 15,2015, and her Verified First Amended Complaint on February 22, 2016.

It is well settled that "a court, when deciding whether to grant a motion to dismiss pursuant to C.P.L.R. §3211, must take the allegations asserted within a plaintiff's complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the [*2]facts as alleged fit within any cognizable legal theory" (Samiento v. World Yacht Inc., 10 NY3d 70, 79 [2008]; (citing, Arnav Indus., Inc. Retirement Trust v. Brown Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).

In assessing a motion under C.P.L.R. §3211(a)(7), "[u]nder modern pleading theory, a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists" (Rovelo v. Orofino Realty Co., 40 NY2d 633[1976]). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one "(Leon v. Martinez, 84 NY2d 83 [1994][citing, Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [19977]; Rovell, supra, at 636]).

"Stated another way, the court's role in a motion to dismiss is limited to determining whether a cause of action is stated within the four corners of the complaint, and not whether there is evidentiary support for the complaint" (Frank v. Daimler Chrysler Corp., 292 AD2d 118, 121 [1st Dept. 2002]; see Weiss v. Lowenberg, 95 AD3d 405, 406 [ 1st Dept. 2012]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. V. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Roni LLC v. Arfo, 18 NY3d 846, 848 [2011]).

In her Second and Third Causes of Action, Plaintiff alleges that she was discriminated against on the basis of age in violation of both the New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL"). However, for the reasons set forth herein below, these claims must be dismissed as untimely.

The Court finds that as an initial matter, Plaintiff failed to file a proper notice of claim against the DOE as required under Education Law §3813(1), which section of the law provides that a plaintiff must file a notice of claim within three months of the accrual of any claim against the DOE. Moreover, Education Law §3813(2-b) states that any claims under the NYSHRL and NYCHRL brought against the DOE must be initiated within one year of their accrual (see also, Amorosi v. South Colonie Indep. Cent. School Dist.,9 NY3d 367,369-73 [2007]). Here, Plaintiff's sole allegation with respect to her age discrimination claim is that in 2009, at age 56, she was classified as an ATR teacher, and that "[u]pon information and belief, all or most of the teachers who were 'excessed.' classified as ATR, and relegated to acting as a substitute teacher were over the age of 40."

Although Plaintiff argues that the CVD has tolled the SOL with respect to her claims of age discrimination, the statute of limitations is only tolled where a defendant employer engages in continuous discriminatory acts, not where the plaintiff employee experiences the effects of an alleged discriminatory act over a period of time (Shelton v. Elite Model Mgt., Inc., 812 N.Y.5.2d745,758 [NY Sup. Ct. 2005]). Although Plaintiff argues that she was discriminatorily assigned to the ATR in 2009, resulting in her being "subjected to dangerous school conditions resulting in multiple instances of assault and battery, constant rotation and appointments outside of her area of expertise, and last minute assignments to students and schools" until her retirement in 2015, even accepting these allegations as true, these incidents are the effect of the earlier allegedly unlawful assignment to the ATR, and not independent acts of unlawful discriminatory conduct. Accordingly, the Court rejects Plaintiff's argument that the Continuing Violation Doctrine applies in this instance, and finds that because the decision to classify Plaintiff as an ATR teacher was made in 2009, any claim arising from that classification accrued in2009 (see [*3]Pinder v. City of New York, 49 AD3d 280, 281 (lst Dept. 2008]).

As to Defendant Harper, Plaintiffs claims are subject to a three year statute of limitations under both the NYSHRL and NYCHRL with the date of accrual being in 2009. Accordingly, the statute ran as of 2012.

Even if, arguendo, the foregoing claims were not time-barred, same must still be dismissed on the basis that Plaintiff did not allege facts showing a discriminatory animus on the part of the Defendants, and Plaintiff's only response to this deficiency in pleading is that she pleads being 56 ^[FN1] at the time she was classified, and that, "upon information and belief," such action was not taken against younger teachers, however, "[t]he mere fact that plaintiff is a member of a protected class and that something bad happened to her does not indicate causation and is insufficient to rise [sic] inference of discrimination" (Nixon-Tinkelman v. New York City Dep't of Health & Mental Hygiene, 2011 NY Sip Op. 32134U, 2011 NY Misc. LEXIS 3869, *3 [NY Sup. Ct. July 27, 2011]).

Plaintiff's claims of disability discrimination set forth in her Fourth and Fifth Causes of Action must be dismissed as to all Defendants on following grounds: 1) to the extent Plaintiff s claims relate to her alleged disability of anxiety, her claim against the DOE must be dismissed because it is undisputed that she failed to comply with Education Law §3813(1) prior to commencing litigation; 2) to the extent Plaintiff's claims relate to her alleged disability of plantar fasciitis, her claim against the DOE must be dismissed because she has not alleged she suffered an adverse employment action as her requested accommodation was granted; and 3) Plaintiff's causes of action for disability discrimination against Harper must be dismissed because she has not alleged that Defendant Harper took any adverse action against her, or that she requested from Defendant Harper any reasonable accommodation which Defendant Harper denied.

Plaintiff argues that by not giving her accommodations, which it is undisputed that she never even requested, the DOE acted discriminatorily, however, the Court has found no basis in law to support Plaintiff's argument. Plaintiff requested an accommodation to be assigned only to schools with elevators and/or to teach on first floors, and she received this reasonable accommodation. Plaintiff, however, argues that the DOE should have accommodated her by not requiring her to stand while teaching or not allowing her to carry a bag among different classrooms, however, it is unrefuted that she never requested these accommodations prior to litigation. Plaintiff, therefore, denied the DOE the opportunity to provide reasonable accommodations, and the DOE not providing an accommodation of which it was not aware was necessary can not reasonably constitute an adverse employment action. As to Harper, the Complaint does not set forth any facts showing that Harper took adverse action against Plaintiff because of her disability. Therefore, Plaintiff cannot sustain a claim of discrimination against Harper as a supervisor, because she has not set forth allegations showing that Harper aided and abetted the discriminatory conduct (see, Steadman v. Sinclair,223 A.D.2d392 (lst Dept. 1996]).

Lastly, the Court finds that Plaintiff s cause of action for assault and battery (vicarious [*4]liability) are not legally cognizable, and therefore, must be dismissed. Plaintiff acknowledges that she really brings a negligence claim, but argues that the Complaint sufficiently pleads the existence of a special duty that would give rise to liability, however, it is well-established law that in cases involving harm caused by students, while a school district may be liable to students for harm caused by other students (under the theory that the school's role in loco paretnis gives rise to a special duty) "[t]he special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises" (Ferguson v. City of New York, 118 AD3d 849,849-850, [2nd Dept. 2014]), and in fact there is substantial case law wherein the courts have held that there is no such special duty to teachers in cases involving harm caused by students (see, e.g., Dinardo v. City of New York, 73 NY3d 872,874 [2009]; Thomas v. New York City Dept. of Educ.,124 AD3d 762 (2nd Dept 2015); Ferguson, 1l8 AD3d at 849).

Accordingly, and for the reasons set forth herein above, it is hereby

ORDERED, that the Verified First Amended Complaint, dated February 22, 2016, is dismissed in its entirety.

All matters not decided or requests for relief not granted herein are hereby DENIED.

This constitutes the decision and order of this Court.