Feingold v. Hankin

• Decision Date: 10 June 2003
• Docket Number: No. 02 CV 4453(CM)(GAY).,02 CV 4453(CM)(GAY).
• Citation: 269 F.Supp.2d 268
• Parties: Stanley FEINGOLD, Plaintiff v. Joseph N. HANKIN, individually, personally, and in his Capacity as President of Westchester Community College, Harry Phillips, III, individually, personally, and in his Capacity as Chairman of the Trustees of Westchester Community College and Thomas S. Carey, personally, and in his Capacity as Chairman of the Trustees of Westchester Community College, and Westchester Community College, Defendants
• Court: U.S. District Court — Southern District of New York

269 F.Supp.2d 268

Stanley FEINGOLD, Plaintiff v. Joseph N. HANKIN, individually, personally, and in his Capacity as President of Westchester Community College, Harry Phillips, III, individually, personally, and in his Capacity as Chairman of the Trustees of Westchester Community College and Thomas S. Carey, personally, and in his Capacity as Chairman of the Trustees of Westchester Community College, and Westchester Community College, Defendants

No. 02 CV 4453(CM)(GAY).

United States District Court, S.D. New York.

June 10, 2003.

AMENDED MEMORANDUM DECISION AND ORDER ¹

McMAHON, District Judge.

Plaintiff Stanley Feingold brings causes of action for declaratory judgment and damages based on theories of unjust enrichment and negligent misrepresentation against Westchester Community College (WCC) as well as Joseph N. Hankin, Harry Phillips, III, and Timothy S. Carey, individually and in their capacity as President and Trustees, respectively, of WCC. Plaintiff alleges in substance that WCC and the individual Defendants owe him money in lieu of a pension, which they were precluded by state law from offering him. (See Compl. ¶ 5 appended to Arcuri Decl. as Ex.A.)

Defendants move to dismiss the complaint in its entirety pursuant to Fed. R.Civ.P. 12(b)(1),(2),(5), (6) and (7) asserting that this Court lacks subject matter jurisdiction over Plaintiffs claims and personal jurisdiction over the Defendants, that the Plaintiff has failed to state a claim on which relief can be granted, and that the claims are time barred. (Mot. to Dismiss.) For the reasons stated below, I find that Plaintiff failed to properly serve Westchester County (the real party in interest to named defendant Westchester Community College). As a result, I defer further discussion on the merits of Plaintiffs claim until all parties have been properly served. However, I provide the full background of Plaintiffs claims now, in order to provide context to the jurisdictional argument and to facilitate issuance of a decision on the merits immediately after Plaintiff has effected proper service.

BACKGROUND

The following facts are undisputed, unless noted.

From 1948 until 1982, Professor Feingold was a well-regarded member of the faculty of the City College of New York (City College). He advanced to the position of Associate Professor in the Department of Political Science.

Throughout his thirty four years at City College, Professor Feingold was enrolled in and made contributions to the New York City Teacher's Retirement System (TRS.) (Notice of Pet. ¶ 3, appended to Arcuri Decl. as Ex. B.)

In 1982, pursuant to the recommendation of the College Search and Screen Committee, Defendant Joseph N. Hankin, President of WCC, offered Professor Feingold the newly created position of Cultural Coordinator at WCC. The job was designed to take advantage of both the Plaintiffs skills as a professor and his experience in creating community arts programs within Westchester County. (Id. at ¶ 4.) According to the Complaint, part of the enticement to lure Professor Feingold from his secure position at City College involved "a series of promises and representations (which continued to his retirement)" including a promise that he would be eligible to accrue pension benefits during his tenure at WCC through one of the several pension plans available to state employees. (Compl. ¶¶ 8,9, and 11; Notice of Pet. ¶ 4)) Plaintiff alleges that he was promised a pension, or equivalent compensation, so that upon retirement he would be on a par, economically, with other WCC retirees of similar tenure and experience. He does not allege that this promise was made to him in writing. Plaintiff accepted the position at WCC, retired from his position at City College, and began drawing the pension that he had earned under the TRS program while at City College.

After starting his new job, Professor Feingold, through WCC, enrolled in and began making payments to the Teacher Insurance and Annuity Association (TIAA), a private pension agency separate from TRS. (Notice of Pet. ¶ 5.) In 1983, Professor Feingold and WCC learned that he could not collect benefits under his City College pension and simultaneously accrue benefits under a new pension plan. Under §§ 211 and 213 of Article 7 of the Retirement and Social Security Law (Retire. & Soc. Sec), a retired public employee may be re-employed by another government without diminishing his or her rights in an existing pension. However, the employee is prohibited from joining another pension program while collecting the pension from the old job. Because Professor Feingold was receiving payments from his TRS pension he was ineligible to accrue pension benefits under TIAA. (Notice of Pet. ¶ 6.) Apparently, Professor Feingold could have elected to continue to pay into TRS while employed at WCC, but he could not "double dip", i.e. collect his TRS pension while accruing a second pension in his new job.

In a letter to Defendant Hankin, dated September 1, 1983, Professor Feingold expressed his concern about this news. He indicated that he intended to seek advice on mounting a legal challenge to the statutory constraint. He expressed, as well, his concern (unfounded) that the law might prohibit his employment with WCC and frustrate his desire to continue working on the many projects he had in mind. (Arcuri Decl. Ex. E.) Professor Feingold apparently took no legal action at the time.

Over the years, the Plaintiff fulfilled the responsibilities of his new position, creating numerous cultural programs and courses reaching out to the members of the community. From 1983 through 1996 (when it became unnecessary because Professor Feingold reached age 70), Dr. Hankin, on behalf of WCC, filed the appropriate Form UP-211 waivers, required by Ret. & Soc. Sec. L. § 211, requesting approval of employment of a retired public employee who is currently drawing a pension. (Arcuri Decl. Ex. F).

On February 14, 1997, fourteen years after Professor Feingold and WCC had learned that state law prohibited him from simultaneously collecting and accruing pension benefits. Plaintiff asked Dr. Hankin to support an effort to get the New York State Legislature to pass a private bill authorizing a pension for his sixteen years of service to WCC. (Arcuri Decl. Ex. G.) In September 1997, Dr. Hankin sent a letter to the Chancellor of the State University of New York in support of "a waiver of the relevant provisions [of the code] to allow the granting of a pension to Stanley eingold for his sixteen years of service on the faculty of Westchester Community College." The letter cites an "explicit understanding shared by both [Feingold] and the College that he would be eligible for a pension for his service at WCC...." (Hankin Letter, appended to Arcuri Dec. as Ex. G.) The response, from Lawrence J. Katz, Director of Employee Benefits, reiterated the prohibition against "double dipping" under Art. 7 §§ 211 and 213, about which Professor Feingold and WCC had been apprised nearly fourteen years earlier. The Legislature did not pass any private bill.

On June 30, 1998, Professor Feingold, through attorney Jeffrey L. Goldberg, filed a Notice of Petition pursuant to New York Civil Practice Law and Rules (N.Y.C.P.L.R.) Art. 78, naming as defendants the State University of New York/Westchester Community College and The New York State and Local Employees' Retirement System. In the petition Plaintiff asked for a judgment and order 1) annulling the defendants' determination that denied him a second pension, 2) directing defendants to allow him that pension, and 3) directing defendants to make all retroactive contributions. (Arcuri Decl. Ex. B ¶ 11.) On November 24, 1998, Professor Feingold's attorney withdrew the action without explanation.

Plaintiff retired from his position at WCC in June, 1999. The instant complaint was filed three and one half years later, on June 12, 2002. The complaint alleges and seeks damages for Defendants' negligent misrepresentation and unjust enrichment and requests declaratory judgment that the Plaintiff is entitled to receive a pension or its equivalent.

ARGUMENTS

Until the current complaint was filed, Plaintiffs predominant concern was obtaining a traditional pension administered by a formal pension system (see Notice of Pet.) (Article 78 action to compel granting a second pension); see also Arcuri Decl. Exs. E, F, and G) (various letters expressing concern over and requesting waiver of state law prohibiting double pensions and seeking legislative bill to override law and grant such a pension). The pleading before me, however, refers more generally to a "series of promises and representations" made by the Defendants for a "salary, benefits and other emoluments in a package such that it would be ... desirable for him ... [to] accept the position" and such that he "would have the same or nearly the same economic benefits as other WCC professors of substantially similar tenure and experience when they retired." (Compl. ¶¶ 8-9) He claims to have relied on this promise when he left his tenured position at City College. Having failed to receive money to recompense him for the loss of a second pension, Professor Feingold alleges that the Defendants made negligent misrepresentations in the form of the above promises and that the negligent misrepresentations were made to entice him away from City College. The complaint seeks declaratory judgment that he is entitled to receive such a pension or the equivalent benefits. (Compl. ¶¶ 113-21). And it alleges that Defendants were unjustly enriched to the extent that they have neither made contributions to any pension plan nor paid him equivalent sums.

The Defendants' multi-faceted motion to dismiss asserts, variously, that this Court lacks subject matter jurisdiction, personal jurisdiction over WCC, and personal jurisdiction over the individual Defendants in their official capacities; that Plaintiff failed to join an...