Leon v. Murphy
| Citation | 988 F.2d 303 |
| Decision Date | 05 March 1993 |
| Docket Number | No. 150,D,150 |
| Parties | Donald LEON, Plaintiff-Appellant, v. John MURPHY, as Acting Executive Director of the New York City Employees' Retirement System, The New York City Employees' Retirement System, The Board of Trustees of the New York City Employees' Retirement System, The New York City Housing Authority, Lynne Shea, as Acting General Manager of the New York City Housing Authority, Harvey Bugner, and Evelyn Rivera, Defendants-Appellees. ocket 92-7461. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Edgar Pauk, New York City (Legal Services for the Elderly, of counsel), for plaintiff-appellant.
Jane S. Earle, Asst. Corp. Counsel of the City of New York, New York City (O. Peter Sherwood, Corp. Counsel of the City of New York, Francis F. Caputo, Charles L. Finke, Asst. Corp. Counsel of the City of New York, of counsel), for defendants-appellees John Murphy, The New York City Employees' Retirement System, and The Bd. of Trustees of the New York City Employees' Retirement System.
Thomas S. Rosenthal, Counsel, New York City Housing Authority, New York City (Alan D. Aviles, Gen. Counsel, New York City Housing Authority, Terrence B. Schwartz, Myung Kang-Huneke, Counsel New York City Housing Authority, of counsel), for defendants-appellees New York City Housing Authority, Lynne Shea, Harvey Bugner, and Evelyn Rivera.
Before: VAN GRAAFEILAND, WINTER, and MAHONEY, Circuit Judges.
Plaintiff-appellant Donald Leon appeals from a judgment entered April 13, 1992 in the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, that granted defendants-appellees' motions for summary judgment with respect to plaintiff's federal claims brought pursuant to 42 U.S.C. § 1981 (1988) et seq., and dismissed plaintiff's state law claims without prejudice. For the reasons that follow, we affirm.
Leon was hired by the New York City Housing Authority ("NYCHA") as a painter on May 13, 1985 as a provisional employee, and acquired civil service status on March 24, 1986. Upon obtaining civil service status, Leon was asked to report to NYCHA's offices for an orientation session on April 10, 1986. At the orientation, Leon received numerous documents, including an application for enrollment in the New York City Employees' Retirement System ("NYCERS"). Leon also received a pamphlet entitled "Facts About Your Pension." 1
Leon alleges that he completed his NYCERS application on April 10, 1986, and that he left it with NYCHA to be forwarded to NYCERS. Neither NYCERS nor NYCHA have any record of an application for membership in NYCERS ever having been filed by Leon. Pursuant to the New York City Administrative Code, civil service employees who do not complete and file membership applications with NYCERS automatically become NYCERS members six months after achieving civil service status. N.Y., Admin.Code, § 13-104 (1986).
Leon alleges that on April 30, 1986, after his second bimonthly paycheck did not include a deduction for his pension contribution, he contacted the NYCHA payroll department and spoke to an employee identified as "Robert" to inquire about his membership. Leon alleges that "Robert" told him not to worry, and that his pension deductions would "start eventually" and would be "retroactive." Leon further alleges that on May 30, 1986, a pension deduction for over $200 was taken out of his bimonthly paycheck, and that when he contacted "Robert" to inquire about the size of the deduction, Leon was told that the deduction was so large because it was retroactive to March 24, 1986--the date he first attained civil service status. NYCHA's payroll records indicate, however, that the first pension deduction was made from Leon's check a year later, on May 30, 1987.
On July 7, 1986, while on the job, Leon suffered a permanently disabling injury to three fingers of his right hand and received worker's compensation benefits from July 1986 to January 1987. Because NYCERS had not received a voluntary application for membership, Leon was "mandated" into NYCERS pursuant to the Administrative Code on September 24, 1986, six months after attaining civil service status.
Leon alleges that sometime in August 1986, and again in December 1986 or January 1987, he was told by "Robert" that "he must wait one year from the accident date, and then, if he was still disabled, he could apply for an accidental disability pension from NYCERS." Leon's verified complaint also includes the allegation, contradicted by NYCHA's payroll records and apparently abandoned on appeal, that beginning in or about January 1987, "each one" of his regular paychecks showed a pension deduction of over $200.
NYCERS asserts that it prepared on October 28, 1986 a two-page document entitled "Certification of Rate of Deduction" (the "Certificate") that showed Leon's "membership date" in NYCERS to be September 24, 1986, and also an "effective date" of September 24, 1986. A copy of this document allegedly was mailed to Leon by NYCERS in November 1986 in accordance with NYCERS' standard office procedures. A second copy was sent to the employing agency, in this case NYCHA, and NYCERS retained two copies--one in Leon's "NYCERS file jacket." Leon maintains that he never received this mailing. Additionally, Leon's wife, who opens the family mail, also asserts that the Certificate was not received.
NYCERS asserts that in December 1986 it sent Leon a "forced-in" letter dated December 3, 1986 (the "Mandate Letter") mandating his membership in NYCERS. The Mandate Letter stated in pertinent part:
Under the laws governing this system membership for permanent City-Employees is mandatory within six months from date of permanent appointment.
Your department has advised that you have completed six months of Civil-Service and have not become a member of this system.
Accordingly, a rate of 3% under Article 15 (Tier IV), has been certified to your department as the basis for all pension deductions to be made from your salary, effective 9-24-86 six months from your permanent appointment date as required by law.
As in the case of the Certificate, Leon and his wife aver that they never received the Mandate Letter.
On July 16, 1987, Leon filed a pension application with NYCHA which was forwarded to NYCERS. In a letter mailed to Leon dated December 31, 1987, NYCERS responded as follows:
We have received your application for Accident Disability Retirement filed July 23, 1987 in which you claim to be disabled for performance of city service due to an accident which occurred on July 7, 1986.
I must inform you that you became a member of the Retirement System on September 24, 1986. Therefore your accident occurred before you became a member. Under the provisions of laws governing disability retirements "a member in city service may apply for retirement ... if incapacitated as a result of accidental injury received in city service while a member." You are not eligible for accident disability retirement based on the accident claimed prior to your membership, and we cannot process your application.
If you have any questions, you may telephone this office.
Leon concedes that he received this letter sometime in January 1988.
On September 20, 1988, Leon filed a notice of claim with NYCHA which alleged that NYCHA had negligently lost, misplaced, or failed to deliver to NYCERS his April 10, 1986 application for membership in NYCERS. The notice was rejected as untimely by NYCERS on or about December 7, 1988.
Consequently, Leon filed a state court action seeking a declaration that his notice of claim was timely, or alternatively seeking permission to file a late notice. The New York Supreme Court, New York County, denied Leon's application to file a late notice of claim because Leon "failed to offer a satisfactory explanation for the seven month delay in filing his Notice of Claim." Leon v. NYCHA, No. 25152/88 (order filed Jan. 27, 1989). Leon's motion for renewal and reargument was also denied. Id. (order filed May 5, 1989).
On appeal, the denial was affirmed by the Appellate Division, First Department. Leon v. NYCHA, 157 A.D.2d 628, 550 N.Y.S.2d 646 (1st Dep't 1990). The Appellate Division stated:
The cause of action against [NYCHA] accrued no later than September 1986, when [NYCHA] acted to have petitioner automatically become a member of [NYCERS]. As of that time, any negligence on the part of [NYCHA] had already occurred; the fact that [Leon] may have learned of the existence of the cause of action only at the time of [NYCERS'] formal rejection of his pension application does not alter this rule of accrual (Gilbert Props. v. Millstein, 40 A.D.2d 100 [338 N.Y.S.2d 370 (1st Dep't 1972), aff'd, 33 N.Y.2d 857, 352 N.Y.S.2d 198, 307 N.E.2d 257 (1973) ]; Kitonyi v. Albany County, 128 AD2d 1018 [513 N.Y.S.2d 555 (3d Dep't 1987) ]. Thus, the court was required to deny the motion for leave to file a late notice of claim as the claim had been filed more than one year and 90 days after the accrual of the cause of action (General Municipal Law § 50-e; Public Housing Law § 157). We note that had the court had discretion in this matter, the determination that the eight-month delay in filing the notice of claim, after [NYCERS] rejected the disability pension application, was prejudicial to [NYCHA's] ability to investigate the claim was sufficient to support denial of the motion under the circumstances of this case (see, Matter of Gerzel v. City of New York, 117 AD2d 549 [499 N.Y.S.2d 60 (1st Dep't 1986) ].
Id. at 629, 550 N.Y.S.2d at 647. The New York Court of Appeals denied Leon's motion for leave to appeal on June 7, 1990. Leon v. NYCHA, 76 N.Y.2d 702, 559 N.Y.S.2d 239, 558 N.E.2d 41 (1990).
On December 28, 1990, Leon commenced this federal action against both NYCHA and NYCERS. The complaint stated eight federal claims and six pendent state-law claims. Two of the claims, the...
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