To be Argued by:
ANN M. ALEXANDER., ESQ.
(Time Requested: 10 Minutes)
APL-2014-00105
Appellate Division Docket No. CA 13-00896
Onondaga County Clerk’s Index No. 2012-3413
Court of Appeals
of the
State of New York
EILEEN MALAY,
Plaintiff-Appellant,
– against –
CITY OF SYRACUSE, GARY W. MIGUEL, DANIEL BELGRADER,
MICHAEL YAREMA, and STEVE LYNCH,
Defendants-Respondents.
BRIEF FOR DEFENDANTS-RESPONDENTS
ROBERT P. STAMEY
CORPORATION COUNSEL OF THE
CITY OF SYRACUSE
Attorney for Defendants-Respondents
300 City Hall
233 East Washington Street
Syracuse, New York 13202
Tel.: (315) 448-8400
Fax: (315) 448-8381
Of Counsel:
Ann M. Alexander, Esq.
August 15, 2014
DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f)
The City of Syracuse is a municipal corporation organized under the laws of
the State of New York and has no parents, subsidiaries or affiliates.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................. ii
PRELIMINARY STATEMENT .............................................................................1
QUESTIONS PRESENTED ....................................................................................4
STATEMENT OF FACTS ......................................................................................5
A. Factual Background ...............................................................................5
B.
Procedural History .................................................................................7
ARGUMENT .........................................................................................................12
PLAINTIFF’S COMPLAINT IS TIME-BARRED; PLAINTIFF’S
FEDERAL CLAIMS WERE SUMMARILY DISMISSED AND
PLAINTIFF FAILED TO COMMENCE THE INSTANT STATE
ACTION WITHIN SIX MONTHS OF THE DATE OF JUDGMENT
AS REQUIRED BY CPLR § 205(a) ..........................................................12
A. The six-month statutory period to commence a second action
pursuant to CPLR § 205(a) should not be forestalled by an appeal
unless the appeal is actually taken and a decision is rendered on
the merits ..............................................................................................12
B.
The case law cited by Plaintiff either supports dismissal of her
Complaint as untimely or is inapplicable and should be ignored ......23
C.
Plaintiff was not prevented from commencing her state action
while her federal appeal was pending ................................................27
CONCLUSION ......................................................................................................31
i
TABLE OF AUTHORITIES
Cases
Page(s)
Bender v Peerless Insurance Co., 36 AD3d 1120 (3rd Dept. 2007) ..................... 28
Clark v New York State Office of Parks, Recreation & Historic Preservation,
6 AD3d 1200 (4th Dept. 2004) .......................................................................30
Cohoes Hous. Auth. V. Ippolito-Lutz, 65 AD2d 666 (3rd Dept. 1978) ..........14, 25
Cook v Deloitte & Touche, USA,
13 Misc.3d 1203(A), 824 N.Y.2d 753 (Sup. Ct. 2006) ....................... 18-20, 28
Dinerman v Sutton, 45 Misc.2d 791 (Sup. Ct. 1965) ........................ 17, 20, 22, 25
Gesegnet v Hyman, 285 AD2d 719 (3rd Dept. 2001) ...........................................14
Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (2009) ..........13, 17
Henkin v Forest Laboratories, Inc., 2003 WL 749236 (SDNY 2003) ..................13
In Re Sean W., 87 AD3d 1318 (4th Dept. 2011) ...................................................28
Lehman Brothers v Hughes Hubbard & Reed, LLP,
92 NY2d 1014, 1016-1017 (1998). .............................................. 14, 15, 23-25
Maki v Grenda, 224 AD2d 996 (4th Dept. 1996) ........................................... 25, 26
Trinidad v New York City Dept. of Correction,
423 F.Supp.2d 151, 169 (SDNY 2006) .........................................................13
ii
Statutes
42 U.S.C. §1983 .................................................................................................7, 29
CPLR § 205 ........................................................................ 2, 4, 8, 10, 12-24, 26, 29
CPLR § 3211 .......................................................................................... 2, 10, 27-29
N.D.N.Y., Local Rule 7.1(g) ....................................................................................8
iii
PRELIMINARY STATEMENT
The facts underlying this action arise out of a lengthy stand-off between
Defendants-Respondents, City of Syracuse, Gary W. Miguel, Daniel Belgrader,
Michael Yarema and Steve Lynch (hereinafter collectively “Defendants”) and the
owner of the building where Plaintiff-Appellant rented an apartment in March
2007. On March 17, 2007, the owner – who also resided in the building – had shot
his wife on the lawn of the property and retreated into the building where he held
his son and several other relatives hostage. The ensuing stand-off with Defendants
lasted for approximately twenty-four hours. During that time, Defendants became
aware that Plaintiff resided in the first-floor apartment, but were unable to confirm
she was actually there. Defendants ultimately fired gas canisters into the building,
including Plaintiff’s apartment, at which time she called 911 for assistance.
Although Plaintiff was safely removed from the house, her apartment and personal
items were contaminated. Upon entering the building, Defendants discovered the
owner had shot and killed himself and his son.
Plaintiff originally commenced an action against Defendants in Federal
Court, Northern District of New York, on June 6, 2008 (the “Federal Action”).
That Federal action was dismissed on Summary Judgment (Hon. Lowe, Magistrate
Judge) on September 30, 2011. Plaintiff then moved – albeit untimely – for
reconsideration of the summary judgment motion, which was denied in a Decision
1
and Order, dated December 28, 2011. Plaintiff subsequently filed a Notice of
Appeal, but she abandoned the appeal and no decision on the merits was ever
rendered. Instead, the Second Circuit Court of Appeals dismissed the appeal
finding the “case is deemed in default” as of July 10, 2012.
Plaintiff commenced the instant action in Supreme Court, Onondaga County,
on or about June 25, 2012 – well over six months after the Federal District Court
dismissed Plaintiff’s Federal claims and refused to exercise jurisdiction over the
remaining state law claims. Defendants filed a pre-answer motion to dismiss
pursuant to CPLR § 3211(a) on the grounds Plaintiff’s Complaint was untimely.
The Supreme Court (DeJoseph, S.C.J.) granted the motion to dismiss, and a
Decision and Order was entered on or about November 29, 2012. In the Decision
and Order, the Supreme Court properly concluded that Plaintiff could not benefit
from the Savings Statute pursuant to CPLR § 205(a), because she did not
commence the action within six months from the date her Federal Action was
dismissed. Specifically, the Supreme Court held that the CPLR § 205(a) grace
period began to run from the date the original order was entered dismissing
Plaintiff’s federal claims, and not from the date the Second Circuit formally
dismissed Plaintiff’s appeal due to her own default.
Plaintiff appealed the Supreme Court’s Decision and Order, which was
affirmed by the Appellate Division, Fourth Department, without a written decision
2
on or about January 3, 2014. Plaintiff then sought leave to appeal to this Court,
which was granted on or about May 8, 2014.
3
QUESTIONS PRESENTED
1. Did the Supreme Court err in holding Plaintiff’s Complaint was untimely
and that the six-month grace period to commence the instant State Action
pursuant to CPLR § 205(a) began to run from the date of entry of the Federal
Summary Judgment Order as opposed to the date Plaintiff’s Second Circuit
Appeal was formally dismissed after Plaintiff failed to file a brief or
appendix and effectively abandoned her appeal?
ANSWER: NO. Supreme Court properly held that when a Plaintiff’s federal
appeal is dismissed due to the Plaintiff’s own default, then the six-month grace
period afforded by CPLR § 205(a) to pursue her remaining state claims begins
to run from the date the original order terminated the first action as opposed to
the date the appeal was formally dismissed. Plaintiff’s position would allow
any plaintiff to improperly extend the six-month grace period simply by filing a
notice of appeal and waiting for the appeal to be dismissed as abandoned; such
position is not supported by any case law, and runs afoul of the overall intent of
the statute of limitations enacted to protect defendants from having to defend
stale claims while, at the same time, providing a reasonable period of time
which a person of ordinary diligence would bring an action.
4
STATEMENT OF FACTS
A.
Factual Background
In March 2007, Plaintiff was renting a first-floor apartment at 303 Gere
Avenue in Syracuse, New York. [R. 69]. Plaintiff rented the apartment from Thach
and Sopheap Ros, who owned and resided in another apartment in the house, along
with their children. [R. 69].
On March 17, 2007, the Syracuse Police Department (hereinafter the “SPD”)
received reports of a shooting and possible hostage situation at 303 Gere Avenue. [R.
69]. SPD personnel, including its Emergency Response Team, responded to that
location, where it was initially determined that Thach Ros had shot his wife, Sopheap
Ross, in the street. Still armed, Thach Ros then retreated back into his home at 303
Gere Avenue where he had allegedly shot his son, Peter. [R. 69-70].
After SPD arrived, they heard screams from Thach Ros’ daughter-in-law at a
window of 303 Gere Avenue. Police were able to evacuate the daughter-in-law and
two of Thach Ros’ children from the roof with a ladder. After evacuating these
individuals, Thach Ros remained inside the house with his son, Peter. [R. 69-70].
Although SPD were told Thach Ros had shot his son in the head, and were
nearly certain the boy was dead, the SPD did not know for certain whether Thach
Ros would escalate the situation in some manner. [R. 70, 86]. A stand-off then
ensued for approximately the next twenty-four hours. [R. 13, 25].
5
During this time, SPD became aware that a tenant also resided at 303 Gere
Avenue. [R. 71]. SPD were able to obtain a telephone number for Plaintiff and
proceeded to try and contact her to determine whether she was in her apartment and
needed assistance out.
[R. 71].
Unfortunately, and unbeknownst to the SPD,
Plaintiff’s telephone was being used as a modem for her computer during that time,
and therefore, the only response the SPD received upon calling was a continuous
ringing. [R. 71-72]. The SPD did not know Plaintiff was in her home. [R. 13, 71].
Based on concerns of officer safety, the decision was made to deploy CS gas in
an attempt to force Thach Ros from the residence. [R. 86]. As the SPD began
methodically firing the gas into the building, canisters were also fired into Plaintiff’s
apartment since the layout of the house was yet unknown. At that point, Plaintiff
used a cell phone to call 911 for assistance. [R. 74-75]. She was immediately
contacted by the SPD and safely evacuated from the premises. [R. 75-76]. Plaintiff
was taken to an SPD van and offered medical assistance. Plaintiff declined any
medical assistance. [R. 76, 91-92].
SPD personnel continued to surround and monitor Thach Ros’ home. The
following day, SPD personnel went into the home but had to withdraw when they
were fired upon by Thach Ros. [R. 13-14, 26]. Eventually, SPD personnel did enter
the premises where they discovered that Thach Ros had taken his own life. [R. 12-13,
26].
6
SPD subsequently cordoned off the entire building because it was a crime
scene. Plaintiff’s vehicle and apartment were contaminated as a result of the gas used
during the event. [R. 14, 26].
B.
Procedural History
On or about June 6, 2008, Plaintiff commenced an action by filing a complaint
in the United States District Court, Northern District of New York, against
Defendants (hereinafter the “Federal Action”). [R. 48-66]. Therein, Plaintiff asserted
four claims pursuant to 42 U.S.C. § 1983, alleging violations of Plaintiff’s
constitutional rights under the Fourth, Fifth, and Fourteenth Amendments of the
United States Constitution. Plaintiff also asserted one claim for violation of her
rights under the New York State Constitution, and four claims of negligence under
New York common law. Each of Plaintiff’s claims in the Federal Action arose from
Defendants’ alleged actions on March 17, 2007. [R. 48-66].
Prior to asserting an Answer, Defendants sought dismissal of the Federal
Action in its entirety for failure to state claims upon which relief could be granted. In
a Decision and Order, dated July 14, 2009, the Northern District Court dismissed
Plaintiff’s Fifth Amendment claims, all claims against Gary Miguel, and further
dismissed all claims asserted against Defendants for violations of Plaintiff’s rights
under the New York State Constitution. [R. 27].
7
After completing extensive discovery, Defendants moved for summary
judgment seeking dismissal of Plaintiffs’ remaining claims in their entirety. [R. 27].
On September 30, 2011, the Northern District granted Defendants’ motion for
summary judgment and dismissed Plaintiff’s Federal Claims in their entirety
(hereinafter the “Summary Judgment Order”). [R. 67-95]. With regards to Plaintiff’s
remaining State law claims, the District Court held that “[b]ecause the Court has
dismissed all of Plaintiff’s federal claims, it declines to exercise jurisdiction over
Plaintiff’s state law claims.” [R. 96].
Since Plaintiff’s state law claims were not dismissed on the merits, she had the
option of filing a second action in New York State Supreme Court within six months
pursuant to CPLR § 205(a) if she wished to pursue her remaining state law claims.
However, instead of timely pursuing an action in New York Supreme Court, Plaintiff
chose to file an untimely motion for reconsideration in the Federal Action. [R. 98,
101]. Defendants’ counsel immediately notified the District Court that Plaintiff’s
time to file a motion for reconsideration was time-barred pursuant to Northern
District of New York, Local Rule 7.1(g). [R. 101]. Plaintiff nevertheless filed a
motion for reconsideration on or about November 7, 2011. [R. 104]. Notably, the
singular issue presented for reconsideration was the dismissal of Plaintiff’s Federal
claim alleging Defendants violated her constitutional rights by allegedly failing to
decontaminate Plaintiff’s apartment and personal property. [R. 105]. Plaintiff did not
8
seek reconsideration of the District Court’s refusal to exercise jurisdiction over
Plaintiff’s State law claims. [R. 103-114].
The District Court “DENIED” Plaintiff’s motion for reconsideration in its
entirety in a Decision and Order, dated December 28, 2011. [R. 103-114]. The
District Court specifically held that that “[p]laintiff did not file her motion within
fourteen days after the September 30, 2011, order and judgment. Thus, her motion is
untimely.” [R.104]. The District Court also concluded Plaintiff’s motion lacked merit
and denied the requested relief in its entirety because Plaintiff’s amended complaint
failed to “allege facts plausibly suggesting that any individual Defendant violated
Plaintiff’s constitutional rights by failing to decontaminate her property.” [R. 114].
The Reconsideration Order did not modify, reverse or otherwise amend the District
Court’s previous Summary Judgment Order in any manner.
After Plaintiff’s motion for reconsideration was denied, Plaintiff filed a Notice
of Appeal with the Second Circuit Court of Appeals on January 27, 2012. See Malay
v City of Syracuse, Second Circuit, Dkt. No. 1, Notice of Appeal. Plaintiff indicated
in her Pre-Argument Statement (the only papers Plaintiff ever filed with the Second
Circuit) that she intended to seek review of the dismissal of her federal claims only.
See Malay v City of Syracuse, Second Circuit, Dkt. No. 13, Form C – Pre-Argument
Statement.
9
Plaintiff never perfected this appeal. In fact, plaintiff abandoned the appeal
completely and no determination on the merits was ever made or entered by the
Second Circuit Court of Appeals.
[R. 142, 146]. Instead, the Second Circuit
dismissed Plaintiff’s appeal as of July 10, 2012, holding the case was “deemed in
default” as a result of Plaintiff’s failure to file a brief and appendix. [R. 146].
Almost nine months after Plaintiff’s Federal Action was dismissed and the
District Court refused to exercise jurisdiction of Plaintiff’s State law claims, Plaintiff
commenced the instant action by filing a Summons and Complaint in Supreme
Court, Onondaga County, on June 25, 2012 (hereinafter the “State Action”). [R. 3347].
Defendants immediately moved to dismiss Plaintiff’s Complaint as untimely
pursuant to CPLR § 3211. [R. 20-114, 140-145]. In opposition, Plaintiff argued the
six-month grace period afforded by CPLR § 205(a) did not begin to run until the
Second Circuit Court of Appeals formally dismissed her appeal despite the fact that
she clearly abandoned it. [R. 115-138]. The Supreme Court properly rejected this
argument holding, among others things, that Plaintiff could not benefit from the later
date when her Second Circuit appeal was dismissed because Plaintiff abandoned this
appeal and it was never decided on the merits due to the Plaintiff’s own default. [R.
17-18]. Instead, the Supreme Court properly held the six-month grace period began
to run from the date of entry of the District Court’s Summary Judgment Order, and
10
Plaintiff’s Complaint was therefore untimely. [R. 17-18]. Plaintiff appealed the
Supreme Court’s Decision and Order [R. 3], which was affirmed by the Appellate
Division, Fourth Department, without a written decision on or about January 3,
2014. [R. 203]. Plaintiff then sought leave to appeal to this Court, which was
granted on or about May 8, 2014. [R. 204-205].
11
ARGUMENT
PLAINTIFF’S COMPLAINT IS TIME-BARRED;
PLAINTIFF’S FEDERAL CLAIMS WERE SUMMARILY DISMISSED
AND PLAINTIFF FAILED TO COMMENCE THE INSTANT STATE
ACTION WITHIN SIX MONTHS OF THE DATE OF JUDGMENT AS
REQUIRED BY CPLR § 205(a)
A. The six-month statutory period to commence a second action pursuant to
CPLR § 205(a) should not be forestalled by an appeal unless the appeal is
actually taken and a decision is rendered on the merits.
Neither party disputes that the six month tolling provision provided by
CPLR § 205(a) was available to Plaintiff after the Federal District Court granted
Defendants’ motion for summary judgment on September 30, 2011, dismissing
Plaintiff’s Federal Complaint on the merits and declining to exercise supplemental
jurisdiction over the remaining state law claims. [R. 67-96].
Indeed, Section 205(a) states, in relevant part, as follows:
(a) New action by plaintiff. If an action is timely
commenced and is terminated in any other manner than
by a voluntary discontinuance, a failure to obtain
personal jurisdiction over the defendant, a dismissal of
the complaint for neglect to prosecute the action, or a
final judgment upon the merits, the plaintiff … may
commence a new action upon the same transaction or
occurrence or series of transactions or occurrences within
six months after the termination provided that the new
action would have been timely commenced at the time of
commencement of the prior action and that service upon
defendant is effected within such six-month period. …
(CPLR § 205[a]) (emphasis added).
12
Here, the Federal Summary Judgment Order constituted a final disposition
on the merits dismissing each of Plaintiff’s Federal Claims, and the Federal Court
declined to exercise jurisdiction over Plaintiff’s remaining State Claims. [R. 6795]. Accordingly, at the time the District Court issued its Summary Judgment
Order on September 30, 2011, Plaintiff’s Federal Action was terminated within the
meaning of CPLR 205(a), and Plaintiff had the option to commence a state court
action with six months. See generally Goldstein v New York State Urban Dev.
Corp., 13 NY3d 511, 518-519 (2009); see e.g. Trinidad v New York City Dept. of
Correction, 423 F.Supp.2d 151, 169 (SDNY 2006); Henkin v Forest Laboratories,
Inc., 2003 WL 749236, *10 (SDNY 2003).
However, Plaintiff did not file the instant Complaint within six months of
the District Court’s Summary Judgment Order as required by CPLR § 205(a), but
instead waited until June 25, 2012, almost nine months after her Federal Action
was dismissed. [R. 34]. Accordingly, the Supreme Court properly dismissed the
State Action as untimely, holding as follows:
“In the Court’s view, the district court’s summary judgment
order of September 30, 2011, constituted a final decision on
the merits. At that point, plaintiff’s federal action was
terminated and plaintiff had the option to commence a state
action within six months. Plaintiff failed to do so and, as a
result, the present action must be dismissed.” [R. 16-17].
13
Despite this ruling, as well as the Appellate Division’s affirmance, Plaintiff
continues to argue that she was not required to file her State Action within six
months of the Summary Judgment Order, but was instead permitted to wait six
months from the date her appeal to the Second Circuit Court of Appeals was
dismissed – despite the fact that the appeal was dismissed due to her own default
after she filed an untimely motion for reconsideration in the District Court.
Supreme Court properly rejected this argument and dismissed Plaintiff’s complaint
as untimely, and it is respectfully submitted that this Court do the same. 1
It is well settled by this Court that where an appeal is taken as a matter of
right, or where discretionary appellate review is granted, the six-month period
provided under CPLR § 205(a) does not commence until there is a determination
of the appeal. See Lehman Brothers v Hughes Hubbard & Reed, LLP, 92 NY2d
1014, 1016-1017 (1998); see also Cohoes Hous. Auth. V. Ippolito-Lutz, 65 AD2d
666 (3rd Dept. 1978) aff’d. 49 NY2d 961.
In Lehman Brothers, this Court
succinctly articulated the following with regards to appellate review and the
statutory period afforded by CPLR § 205(a):
1
It should also be noted that Plaintiff abandoned before the Appellate Division any argument on
appeal that the six-month grace period began to run from the date of the District Court’s
Reconsideration Order. As Supreme Court properly noted, there was a final determination on the
merits upon entry of the Summary Judgment Order. Plaintiff then filed an untimely motion for
reconsideration and the District Court’s Decision on the motion did nothing to alter, amend or
otherwise modify its prior determination. Compare to Gesegnet v Hyman, 285 AD2d 719 (3rd
Dept. 2001). As such, Plaintiff could not benefit from the later date of the Reconsideration
Order to begin the running of the grace period afforded pursuant to CPLR § 205(a).
14
“we, like the Appellate Division, rejected the argument
that a party could forestall the commencement of the
statutory six-month period merely by continuing to
pursue discretionary appellate review. It is not the
purpose of CPLR 205(a) to permit a party to continually
extend the statutory period by seeking additional
discretionary appellate review. By contrast, where an
appeal is taken as a matter of right, or where
discretionary appellate review is granted on the merits,
the six-month period does not commence since
termination of the prior action has not yet occurred. Id.
(emphasis added).
While the undersigned has found no case law from this Court directly addressing
the issue presented in this case (i.e., at what point does the six-month statutory
period begin to run where an appeal as-of-right is abandoned and no determination
on the merits is ever made), it is respectfully submitted that the reasoning which
led this Court to reject the plaintiff’s argument in Lehman Brothers, which would
have forestalled the running of the statutory period, also applies in this matter.
Indeed, Plaintiff and her counsel would like this Court to simply ignore the
fact that Plaintiff abandoned her Second Circuit appeal. However, the fact that
Plaintiff never filed a record or brief, and simply waited for the Second Circuit to
dismiss the appeal on the basis of Plaintiff’s own default is significant.
First, as in Lehman Brothers, a plaintiff should not be permitted to forestall
the running of the statutory period under CPLR § 205(a) simply by filing a notice
of appeal, failing to perfect that appeal and waiting until the appeal is dismissed
due to default. Even interpreting CPLR § 205(a) broadly, the legislature could not
15
have intended to authorize a plaintiff to wait around until a federal appeals court
dismissed an appeal due to the plaintiff’s own default, then allow an additional six
months to commence a state action from the date of default. Such a reading of
CPLR § 205(a) could have serious and unintended repercussions and would allow
any plaintiff to forestall the running of the statutory period simply by filing a
notice of appeal without any intention of perfecting it.
Second, since the Federal Appeal in this case was not taken to its conclusion,
but was instead dismissed due to the Plaintiff’s default, no determination on the
merits was ever entered by the Second Circuit Court of Appeals either affirming or
reversing the District Court’s Summary Judgment Order.
As a result, the
Summary Judgment Order entered in September 2011 remains the only
determination terminating Plaintiff’s Federal Action, and dismissing her state law
claims.
Since CPLR § 205(a) begins to run “within six months after the
termination” of the prior action, based on the plain language of the statute, the sixmonth period to commence the instant State Action began when the Summary
Judgment Order was entered in the Federal Action.
Again, while there is no Court of Appeals case directly on point, there is
relevant and analogous case law which supports the lower courts position that the
grace period provided by CPLR § 205(a) runs after an appeal taken as a matter of
right only if there is a determination of the appeal on the merits. In other words,
16
when a plaintiff files a notice of appeal, but never pursues it to its conclusion on
the merits, the termination date for purposes of the six-month grace period runs
from the date of the original dismissal order – not the date the abandoned appeal is
formally dismissed.
For instance, in Dinerman v Sutton, a plaintiff’s action was dismissed for
legal insufficiency. Dinerman, 45 Misc.2d 791 (Sup. Ct. 1965). After filing
another action in State Court, the defendant filed a pre-answer motion to dismiss
arguing, among other things, that the plaintiff’s second complaint was untimely.
Id. The defendant argued that even though the plaintiff appealed the dismissal of
the earlier action, the second action was not saved because the appeal was
dismissed eight months after the notice of appeal was filed without any decision
rendered on the merits. Id. at 792. The Supreme Court agreed and held that “[t]he
grace period of CPLR 205 commences from the date of determination of an appeal
on the merits. To apply this rule to a dismissed appeal would be to permit a
plaintiff to extend his own time to commence a new action in every case by merely
filing a notice of appeal.” Id. (emphasis added); See also Goldstein v New York
State Urban Dev. Corp., 13 NY3d 511, 543, fn. 4 (2009) (concurring opinion)
(“Professor Siegel observes that ‘while the six-month period supplied by CPLR
205[a] will be measured from an appellate determination if the earlier action went
through an appellate stage, this applies only where an appeal was available and
17
was in fact taken.’”). Since the plaintiff failed to commence the second action
within six months after the first action was dismissed for legal insufficiency, the
second action was untimely. Id.
Similarly, in Cook v Deloitte & Touche USA, the plaintiff’s federal claims
were summarily dismissed on October 4, 2005, and the federal court declined to
exercise jurisdiction over the remaining state claims. Cook, 13 Misc.3d 1203 at *2,
824 NYS2d 753 (Sup. Ct. 2006). The plaintiff then filed a notice of appeal with
the Second Circuit Court of Appeals. However, the plaintiff did not seek review of
the District Court’s refusal to exercise supplemental jurisdiction over the plaintiff’s
state law claims in his brief or otherwise. The plaintiff then commenced a state
court action on April 28, 2006, over six months after her federal action was
dismissed. Id.
The defendants in Cook moved to dismiss the plaintiff’s complaint as
untimely. Id. at *2-3. Specifically, as here, the defendant argued that the sixmonth grace period afforded to the plaintiff under CPLR § 205(a) began to run on
October 4, 2005, when final judgment was entered in the Federal Court Action.
The defendant argued that the plaintiff’s pending appeal should not extend the sixmonth statutory grace period because “when no appeal is taken from the dismissal
order, or when a notice of appeal is filed from a dismissal order but never
prosecuted on the merits, the ‘termination date’ on which the grace period begins
18
to run is the date on which the dismissal order is entered.” Id. at *3. As here, the
plaintiff in Cook opposed the motion claiming that (1) the Federal Action had not
yet terminated for purposes of CPLR § 205(a) because the federal appeal was still
pending; (2) the legislature did not intend to require pendent state claims,
dismissed without prejudice, to be tried concurrently with federal court claims; and
(3) CPLR § 205[a] is to be “liberally construed.” Id. at *4-5
Even though the plaintiff appealed the dismissal of the federal claims, the
Supreme Court in Cook held that the State law claims were “terminated” for
purposes of CPLR § 205(a) when the original dismissal order was issued by the
District Court on October 4, 2005. Since the plaintiff chose not to appeal the
District Court’s decision not to exercise supplemental jurisdiction over the state
claims, the Supreme Court held the plaintiff’s pending federal appeal did not
forestall the time six-month statutory period to commence a state action. Id. at *910.
With regards to the plaintiff’s arguments, the Supreme Court specifically
stated as follows:
The possibility that plaintiff may be prejudiced due to
collateral estoppel, by a requirement that [he] file an action
within six months after dismissal, while the federal action is
pending, is not without basis. However, any prejudice from
the collateral estoppel effect upon facts that might be
determined in federal court was waived when plaintiff
deliberately declined to appeal the dismissal of his nonfederal claims, thereby necessitating the commencement of
19
the instant action in State Court to preserve such claims.
Similarly, that plaintiff may be forced to “split” non-federal
claims from federal claims, and file non-federal claims in
State Court after their dismissal, while a federal action is
pending, is a consequence of plaintiff's decision to appeal
the dismissal order in part. Once plaintiff exercised his
option to abandon his non-federal claims in the Federal
Action, he was obligated to commence a new action upon
such claims within six months of entry of judgment
dismissing such claims, and plaintiff cannot not be heard to
be prejudiced by the dual litigation of the facts underlying
each action. Id. at * 9 (internal citations omitted).
In fact, the Supreme Court stated that allowing the plaintiff to file a state
action six months after her federal claims were determined on appeal “would
undermine the purpose of the statute of limitations” which were enacted to “afford
protection to defendants against defending stale claims after a reasonable period of
time has elapsed during which a person ordinary diligence would bring an action.”
Id. Moreover, the Court reiterated as follows:
“The Court is mindful that CPLR 205 is an ameliorative
provision, to be construed liberally with due
consideration given to the purpose of the limitation
period affected However, to adopt plaintiffs’ position
would permit him to file his non-federal claims in State
Court after the disposition of the Federal Action, in
which such non-federal claims have been expressly
abandoned, and such position flies in the face of the
underlying, overall intent of the statute of limitations.”
Id. at *10 (internal citations omitted).
Here, as in Dinerman and Cook, Plaintiff’s Federal Action was terminated
on September 30, 2011, when her Federal claims were dismissed and the District
20
Court declined to exercise jurisdiction over her State claims. As in Cook, Plaintiff
never sought to appeal the District Court’s decision declining to exercise
jurisdiction over Plaintiff’s remaining State law claims. Despite Plaintiff’s claim
to the lower courts, Plaintiff’s Pre-Argument Statement does not identify any
intention to appeal the dismissal of her state law claims. See Malay v City of
Syracuse, Second Circuit, Dkt. No. 13, Form C – Pre-Argument Statement.
Instead, Plaintiff extensively outlines the federal claims she intended to pursue in
her Federal appeal. As such, even before the Second Circuit Court of Appeals
dismissed the appeal, Plaintiff had effectively abandoned her state law claims in
the Federal Court.
Furthermore, and contrary to Plaintiff’s assertion, the fact Plaintiff never
perfected her Second Circuit Appeal and abandoned it is of enormous
consequence. Indeed, the Second Circuit dismissed the appeal “effective July 10,
2010,” holding the case was “deemed in default” as the result of Plaintiff’s failure
to file a brief and appendix; no determination on the merits was ever made or
entered. [R. 146]. Consequently, the Supreme Court held and it is submitted that
this Court should affirm that “when an appeal is abandoned and dismissed on
account of a default, the CPLR 205 grace period begins to run from the date the
original order of appeal was entered. In this case, the September 2011 [Summary
Judgment] Order.” [R. 18]. To permit otherwise would allow any “plaintiff to
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extend his own time to commence a new action in every case merely by filing a
notice of appeal.” Dinerman v Sutton, 45 Misc.2d at 792.
Plaintiff’s first “question presented” is noteworthy in this regard:
Is a plaintiff required to litigate an appeal as of right to its
terminus before invoking the grace period of CPLR
§ 205(a) and filing an action in state court, or can that
plaintiff choose to file the state court complaint during
the pendency of the appeal and discontinue the appeal?
Answer: The longstanding history and interpretation of
CPLR § 205(a) gives a diligent plaintiff the right to
pursue an appeal to its terminus or discontinue that
appeal in order to pursue a valid state cause of action. A
plaintiff is not required to pursue an appeal to its end
only to preserve an otherwise legitimate and timely state
cause of action.
Appellant Brief, p. 1.
Defendants do not disagree with the answer provided by Plaintiff to the
question presented above. Instead, Defendants disagree with Plaintiff’s contention
that she acted as a diligent plaintiff. Plaintiff certainly had the right to pursue her
appeal as-of-right until a determination was made on the merits and then, pursuant
to CPLR § 205(a), commence a state action within six months. Plaintiff also had
the right to discontinue her federal appeal as-of-right and pursue her remaining
claims in a second state action. However, Defendants maintain that by abandoning
her Federal Appeal, she should not benefit from the later date that her appeal was
formally dismissed by the Federal Court for the commencement of the six-month
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grace period afforded by CPLR § 205(a). Such an interpretation of the statute goes
directly against this Court’s reasoning as articulated in Lehman Bros. and its
progeny.
It is respectfully submitted that this Court find that the grace period afforded
by CPLR § 205(a) should only be extended if there is a determination on the merits
of an appeal taken as a matter of right. The Plaintiff’s choice to abandon her
Second Circuit Appeal and failure to file the instant Complaint within six months
after the Summary Judgment Order was entered is without excuse, and this Court
should affirm dismissal of the Supreme Court’s Order dismissing the Complaint as
untimely as a matter of law.
B. The case law cited by Plaintiff either supports dismissal of her Complaint as
untimely or is inapplicable and should be ignored.
The case law relied on by Plaintiff is either misplaced or inapplicable and
should be ignored by this Court. Indeed, Plaintiff did not – and cannot – cite a
single case where a court held that the six-month grace period under CPLR
§ 205(a) began to run from the date an appeal was dismissed due to the Plaintiff’s
own default.
No such case law exists because, as outlined above, such a
proposition flies in the face of the intent and purpose of the statute of limitations
and CPLR § 205(a).
While Plaintiff relies extensively on this Court’s decision in Lehman Bros. v
Hughes, Hubbard & Reed, it is respectfully submitted that this case does little to
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sustain Plaintiff’s argument and, in fact, as noted above, supports dismissal of
Plaintiff’s Complaint as untimely. Lehman Brothers, 92 N.Y.2d 1014 (1998). In
Lehman, the plaintiffs commenced an action in a Texas District Court, which was
dismissed for lack of personal jurisdiction on December 16, 1992. Id. at 1015. In
stark contrast with the instant matter, the plaintiffs in Lehman pursued an appeal as
a matter of right, and the District Court’s decision was affirmed on the merits on
June 1, 1995. Id. at 1016.
There is absolutely no indication in Lehman that the
plaintiffs abandoned their non-discretionary appeal or that the appeal was
dismissed due to the plaintiffs’ default.
In fact, after exhausting their non-discretionary appeal and obtaining a
determination on the merits, the plaintiffs continued to seek further discretionary
appellate review from the Texas Supreme Court, and petitioned the United States
Supreme Court for writ of certiorari, which was denied on June 10, 1996. Id. After
the petition to the Supreme Court was denied, the plaintiffs filed an action in New
York on July 11, 1996. Id. In dismissing the plaintiff’s second action commenced
in New York, this Court articulated the rule which has been repeatedly sustained in
courts throughout New York State: that the purpose of CPLR § 205(a) is not to
permit a party to continually extend the statutory period simply by taking appellate
action, but to allow a plaintiff to pursue an appeal as-of-right without fear of losing
the ability to commence a second action after a decision is rendered on the merits
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by the appellate court. Id. at 1016-1017.
As previously outlined above, the very same reasoning which led this Court
in Lehman to prohibit a plaintiff from extending the six-month grace period
“merely by continuing to pursue discretionary appellate review” should be applied
to a plaintiff who chooses to abandon an appeal taken as a matter of right. Id. at
1016. To be sure, if Plaintiff’s position were adopted, then any plaintiff could
“forestall the commencement of the statutory six-month period merely” by filing a
notice of appeal, failing to perfect such an appeal, and waiting for the appellate
court to dismiss the case as abandoned. Id.; see also Cohoes Housing Authority v
Ippolito-Lutz, 65 AD2d 666, 667 (3rd Dept. 1978) (“As noted by Special Term in
the case of Dinerman v Sutton, it is not the purpose of the statute to permit a party
to extend the time to commence a new action by merely taking appellate action).
Only if there has been a determination of an appeal on the merits should the
six-month grace period be extended. Again, Plaintiff has not cited a single case or
legal authority supporting her position to the contrary, which amounts to nothing
more than an attempt to circumvent the applicable statute of limitations, designed
to protect defendants from having to defend stale claims while also providing a
reasonable time which a person of ordinary diligence would bring an action.
Plaintiff’s position should be ignored and her Complaint dismissed as untimely.
Finally, Plaintiff argues that the Appellate Division, Fourth Department,
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failed to follow its own precedent set in Maki v Grenda when it affirmed dismissal
of her Complaint. Maki, 224 AD2d 996 (4th Dept. 1996). However, Plaintiff’s
reliance on this case is misplaced. In Maki, the Federal District Court in an Order
entered October 19, 1993, dismissed the plaintiff’s federal and state law claims
unless the plaintiff repleaded her RICO claims within thirty (30) days of the Order.
Id. Plaintiff did not replead her RICO claim, and her Federal Action was therefore
terminated as of November 18, 1993. Id. The plaintiff then commenced a new
action in state court on April 21, 1994. Id. at 997. The Fourth Department held the
plaintiff timely commenced the state action pursuant to CPLR § 205(a). Id.
The procedural history in Maki is simply not analogous to the instant matter.
To be sure, in contrast to Maki, the Northern District of New York dismissed
Plaintiff’s Federal Action on September 30, 2011. Unlike in Maki, there were no
conditions, qualifications, stipulations or otherwise placed on the Summary
Judgment Order issued by the District Court. Accordingly, and in stark contrast to
Maki, as of September 30, 2011, Plaintiff’s Federal Action was terminated and
Plaintiff had six months to commence a new action pursuant to CPLR § 205(a).
Likewise, and in contrast to Maki, when the Second Circuit provided a firm
deadline for Plaintiff to file her brief and appendix, there was already a Decision
and Order terminating her Federal Action. Plaintiff should not benefit from the
date her appeal was formally dismissed when she was the one who chose to
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abandon the appeal, there was already an Order from the District Court terminating
her Federal Claims which was not affirmed, amended or reversed by the Second
Circuit’s Order, and the power to file a state action within six months of the
Summary Judgment Order was completely within her control.
C. Plaintiff was not prevented from commencing her state action while her
federal appeal was pending.
Plaintiff continues to make the illogical argument that if she is not afforded
six months from the date her appeal was dismissed, she is handcuffed into
following one of two paths: (1) following through with her federal appeal until
there was a decision on the merits, and then filing the State Action, or (2) filing a
concurrent action in state court which would be subject to dismissal pursuant to
CPLR 3211(a)(4).
On its face, Plaintiff’s argument is utterly misleading.
First, Plaintiff
completely glosses over the fact that she had six months from the Summary
Judgment Order to decide whether to pursue a Federal Appeal to its conclusion or
to start a State Action. Six months is certainly a reasonable period of time for a
diligent plaintiff to determine whether an appeal has merit. Defendants should not
be penalized for Plaintiff’s decision to wait more than six months after the
Summary Judgment Order was entered to decide her Federal Appeal lacked merit
and that she would not pursue it. Plaintiff had plenty of time to make the decision
to abandon her federal appeal and commence a state action.
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Moreover, Plaintiff’s claim that by filing a state action before her Federal
Appeal was dismissed would have subjected her to a motion to dismiss pursuant to
CPLR 3211(a) for having two concurrent claims is completely meritless.
First, as an initial matter, Plaintiff did not argue this issue in opposition to
Defendants’ motion, but raised this issue for the first time during oral argument
before the Supreme Court. The issue was raised upon questioning by the Supreme
Court Justice and it is respectfully submitted that this Court not consider this
argument on appeal. See Bender v Peerless Insurance Co., 36 AD3d 1120 (3rd
Dept. 2007) (Appellate Division would not consider issue raised during oral
argument in Supreme Court); See generally In Re Sean W., 87 AD3d 1318, 1320
(4th Dept. 2011) (“An issue may not be raised for the first time on appeal ... where
it ‘could have been obviated or cured by factual showings or legal countersteps' in
the trial court”).
Nevertheless, and contrary to Plaintiff’s suggestion, nothing prevented her
from commencing her State Action within the six months after the Summary
Judgment Order was entered, while at the same time determining whether to
pursue her Federal appeal. Indeed, the fact that “plaintiff may be forced to ‘split’
non-federal claims from federal claims, and file non-federal claims in State Court
after their dismissal, while a federal action is pending, is a consequence of
plaintiff’s decision to appeal the dismissal order in part” and then abandon the
28
appeal altogether. Cook v Deloitte & Touche, USA, 13 Misc.3d 1203(A), * 9.
Furthermore, CPLR 3211(a)(4) permits dismissal of a state action only if
another action is pending between the parties “for the same cause of action.”
There is no doubt that Plaintiff’s state law claims sound in common law
negligence, while her Federal claims, pursuant to 42 U.S.C. § 1983, alleged
violations of her Constitutional rights. These are certainly not “the same cause[s]
of action.” CPLR § 3211(a)(4). However, even if Supreme Court were to consider
them the same for purposes of a CPLR 3211(a)(4) motion, the Court would have
been under no obligation to dismiss the action and had discretion to craft an order
“as justice requires.” Id.
Finally, Plaintiff is attempting to argue both sides of the coin with this
argument. Indeed, it is disingenuous for Plaintiff to argue on the one hand, that she
could not pursue concurrent state and federal actions for fear of dismissal under
CPLR 3211(a)(4), while on the other hand argue that her Federal Action was not
yet terminated for purposes of CPLR § 205(a) on the date she filed her Complaint
in State Court because her appeal was not formally dismissed yet. This argument
should be ignored.
At the moment the Summary Judgment Order was entered, Plaintiff had
three options at her disposal: (1) appeal the District Court’s Summary Judgment
Order and commence a State Action within six months after a determination on the
29
merits of the federal appeal; (2) commence a new action in Supreme Court within
six months of the Summary Judgment Order after deciding the federal appeal
lacked merit; or (3) pursue an Appeal of the Federal claims to the Second Circuit
and commence an action in Supreme Court within six months of the Summary
Judgment Order to pursue the state law claims. Plaintiff had ample time to pursue
any one of these options.
In sum, Plaintiff’s failure to file the instant Complaint in Supreme Court
until June 25, 2012 – nine months after the Summary Judgment Order was entered
in Federal Court – is without excuse given “the fact that the ability to comply was
completely within [her] control.” Clark v New York State Office of Parks,
Recreation & Historic Preservation, 6 AD3d 1200, 1201 (4th Dept. 2004). This
Court should therefore affirm the lower courts decisions and find Plaintiff’s
Complaint untimely as a matter of law.
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CONCLUSION
For the foregoing reasons, the Decision and Order of the Supreme Court and
Order of the Appellate Division, Fourth Department, should be affirmed, together
with such other and further relief that this Court deems just and proper.
Dated: August 14,2014
ROBERT STAMEY, ESQ.
Corporation Counsel
Attorney for Defendants
300 City Hall
Syracuse, New York 13202
315.448.8400
By:
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Ann Mag arelli Alexander
Assistant Corporation Counsel