Montagna v. O'HAGAN
| Decision Date | 23 October 1975 |
| Docket Number | No. 75 Civ. 602.,75 Civ. 602. |
| Parties | Constantine MONTAGNA, Plaintiff, v. John T. O'HAGAN, as Fire Commissioner of the City of New York and as Chairman and Treasurer of the Fire Department Pension Fund (Article I) and the Board of Trustees of the Fire Department Pension Fund, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Howard C. Fischbach, Flushing, N. Y., for plaintiff.
W. Bernard Richland, Corp. Counsel by Marian Probst, Asst. Corp. Counsel, New York City, for defendants.
Both parties have moved for summary judgment pursuant to FRCP 56; the plaintiff on the ground that there is no genuine issue of any material fact and that he is entitled to judgment as a matter of law, and the defendants on the ground that plaintiff's complaint is barred by the Statute of Limitations and by res judicata and/or collateral estoppel.
Jurisdiction is allegedly obtained under Title 28 United States Code § 1343, and plaintiff alleges in his complaint that his "claim is predicated upon provisions of Title 42 United States Code § 1983, in that he was wrongfully retired from his employment as Lieutenant in the Uniformed Fire Forces of the Fire Department of the City of New York in violation of his rights as a citizen of the United States under the Constitution of the United States, specifically, but not limited to, his rights to equal protection of the laws pursuant to the Fourteenth Amendment thereto and the Constitution of the State of New York, Article I, Section 11."
After alleging that the matter in controversy exceeds, exclusive of the interest and costs, the sum of $10,000, the complaint seeks a judgment declaring void plaintiff's alleged wrongful retirement, mandating his reassignment to light duty until he reaches the retirement age of 65 years and granting him appropriate salary and wage differential adjustments.
Plaintiff became a fireman and a member of Article I of the Fire Department Pension Fund on January 1, 1938, and over the years after passing civil service promotion examinations he attained the rank of Lieutenant and aggregated a total service of 31 years.
In 1962 the Medical Board of the Fire Department found plaintiff to be suffering from a partial permanent disability not caused in the performance of his duties and recommended that he be assigned to the Light Service Squad pursuant to Section B19-4.0, subdivision a, paragraph 4 of the Administrative Code of the City of New York.
Periodically thereafter plaintiff's condition was re-evaluated by the Board and after his last examination in November of 1968 the Board rendered its opinion that his condition was unchanged and that he should be continued in limited service.
Thereafter, on the application of the Fire Commissioner, plaintiff was retired on ordinary disability on October 2, 1969.
On or about November 16, 1970, the plaintiff, together with certain other firemen, commenced an action in the Supreme Court, New York County, entitled Sarrosick v. Lowery, et al. (not officially reported, index number 6376/1971, aff'd without opinion, 43 A.D.2d 911, 352 N.Y.S.2d 418, leave to appeal denied, 34 N.Y.2d 514, 355 N.Y.S.2d 1025, 311 N. E.2d 515 (1974) ). In that action plaintiffs sought (i) to enforce certain claimed constitutional rights and contract rights under the pertinent Administrative Code provisions allegedly applicable to their membership, (ii) to obtain a declaration that their retirement was null and void, (iii) to obtain reassignment to light duty until they reached the retirement age of 65 and (iv) to receive appropriate adjustments in their wages and salaries.
In an unreported memorandum decision dated March 30, 1973, rendered after trial, Mr. Justice Arnold Fein granted defendants judgment dismissing the complaint. Plaintiff appealed to the Appellate Division, First Department, and, after an affirmance without opinion, sought leave to appeal from the Court of Appeals which application was denied. (34 N.Y.2d 514, 355 N.Y.S.2d 1025, 311 N.E.2d 515 (1974) ).
On or about April 22, 1975, plaintiff filed his summons and complaint in this action.
At the outset it may be observed that neither party raised, briefed or argued the question of whether this action may be maintained against the defendants since they are all sued in their official rather than individual capacities. See: Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), Accord: Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) but cf. cases involving injunction against public officials from invading constitutional rights. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).
In view of this Court's disposition of this case on other grounds, however, it is not necessary to resolve this question.
Defendants' first ground for their motion for summary judgment is that plaintiff's action is barred by the applicable Statute of Limitations.
Where there is no applicable Federal Statute of Limitations, the Federal courts have repeatedly held in civil rights and other cases that the limitations law of the forum state must be applied. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); UAW v. Hoosier Corp., 383 U. S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966).
In this Circuit the courts have further repeatedly held that the Statute of Limitations for a civil rights action is the one for actions "to recover upon a liability, penalty or forfeiture created or imposed by statute." Viz: CPLR § 214(2); Swan v. Board of Higher Education of the City of New York, 319 F. 2d 56 (2d Cir. 1963); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947), cert. denied, 332 U.S. 825, 68 S. Ct. 166, 92 L.Ed. 400 (1947); Laverne v. Corning, 316 F.Supp. 629 (S.D.N.Y. 1970), modified on other grounds, 376 F.Supp. 836 (S.D.N.Y.1974), aff'd as modified, 522 F.2d 1144 (2d Cir. 1975); Beyer v. Werner, 299 F.Supp. 967 (E.D. N.Y.1969).
Section 214(2) of the New York Civil Practice Law & Rules prescribe a three-year limitation period for actions to recover upon a liability created by statute.
Since plaintiff's claim for wrongful retirement accrued in October of 1969, it is clear that any claim for deprivation of civil rights in connection therewith became time-barred in October of 1972 and hence his action instituted in April of 1975 is clearly barred.
Plaintiff seeks to circumvent the impact of this statute and the above cited cases by characterizing his claim as one for impairment of a contractual obligation or liability. In seeking to avoid the impact of defendants' second ground for summary judgment on the basis of res judicata and/or collateral estoppel, however, defendants contend that "the only constitutional remedy invoked in the earlier Sarrosick case" under the New York State Constitution was that "membership in any pension or retirement system of the State or of a civil division thereof shall be a contractual relationship the benefits of which shall not be diminished or repaired." In other words, not only is any such claim or issue properly determinable in the State court rather than in this Court but by plaintiff's own admission it was so determined in the prior State court proceeding herein.
Accordingly, plaintiff's contention in this respect appears to be wholly without merit. If, as it appears, plaintiff's action is grounded on 42 U.S.C. § 1983, then it is barred by the three-year statute of limitations. If, as plaintiff here contends, his action is grounded in an alleged contract, then his argument has already been rejected in State court and is barred under the doctrine of res judicata, or collateral estoppel. Under either circumstance, the Court must dismiss.
It also appears that a claim under § 1983 is barred by res judicata or collateral estoppel as well as by the statute of limitations. The essence of plaintiff's claim in this action is that he was denied his constitutional (both State and Federal) rights to the equal protection of the laws when the Commissioner made a distinction between the class of employees which had sustained service related disabilities and the class which had incurred non-service connected disabilities, retaining the former in light duty service and retiring the latter.
In his brief on appeal to the Appellate Division, First Department, in the Sarrosick case, plaintiff argued, inter alia (at pp. 19, 22, 23 and 24):
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