Opinion
105819/06.
Decided August 7, 2006.
In this employment discrimination action, the parties bring to the fore the distinction, if it exists, between a "claim" and an "action" in matters overlapping in the state and federal court. At its genesis, the plaintiff's claims for violation of New York state and local human rights laws were couched as claims in a federal court proceeding. The federal proceeding also alleged a violation of the federal Americans with Disabilities Act ("ADA"). When the ADA claim was dismissed with prejudice, the two non-federal claims were dismissed without prejudice to be brought in state court. At issue in this case of first impression, is the timeliness of plaintiff's action for his state and local claims in state court, while the federal claim is on appeal.
The defendants, Deloitte Touche USA, LLP and Deloitte Touche, LLP (collectively "Deloitte" or "defendants"), move for an order, pursuant to CPLR 3211(a)(5), dismissing the complaint of the plaintiff, Louis Cook ("plaintiff"), on the ground that the plaintiff's two causes of action are barred by the applicable three-year statutes of limitation set forth in CPLR 214(2) and New York City Administrative Code ("NYCAC") § 8-502(d), and cannot be revived under the grace period afforded by CPLR 205(a). The plaintiff opposes the motion.
Background
On May 28, 2003, plaintiff filed a complaint in the United States District Court for the Southern District of New York (the "District Court") alleging that Deloitte, his former employer, violated the Americans with Disabilities Act of 1990, 42 USC §§ 12101, et seq. ("ADA"), the New York State Human Rights Law, NY Exec. Law §§ 290, et seq. ("NYSHRL"), and the New York City Human Rights Law, NYCAC §§ 8-101, et seq. ("NYCHRL") (the "Federal Court Action"). Plaintiff alleged that as a result of his alleged disability, Deloitte discriminated against the plaintiff in 1999, when Deloitte required that he take an open-ended personal leave, and in 2000, when Deloitte failed to place him in a position more sedentary than the one he previously held when he sought to return to work in 2000. Plaintiff described his disability as osteoarthritis degenerative bone/soft tissue disease in his knee and heel.
Cook v. Deloitte Touche, LLP, 2005 US Dist LEXIS 22252.
Following discovery, Deloitte moved to dismiss the Federal Court Action. On September 30, 2005, the District Court granted, in part, Deloitte's dismissal motion. The District Court dismissed the plaintiff's ADA cause of action, on the ground that he failed to adduce any admissible evidence that he suffered from a disability within the meaning of the ADA in 1999 and 2000. However, the District Court stated, NYSHRL and NYCHRL "define disability' far broader than the ADA." In light of the dismissal of plaintiff's federal ADA claim, the District Court expressly declined to exercise supplemental jurisdiction over plaintiff's remaining claims "under state (and local) law," which required application of state laws, and dismissed such claims "without prejudice to their renewal in state court." The Clerk of the District Court entered the final judgment in the Federal Court Action on October 4, 2005.
Thereafter, plaintiff filed a notice of appeal from the District Court's final judgment on November 3, 2005 with the United States Court of Appeals, Second Circuit (the "Federal Appeal"), which was followed by the filing of his "Pre-Argument Statement" in which plaintiff represented that he would bring a separate action arising "from substantially the same case or controversy as this appeal" in "NYS Supreme Court NY County." On February 21, 2006, the plaintiff served and filed his Appellant's Brief, in which he stated that he "appeals from only so much of the Judgment, Decision and Order, as resulted in the dismissal of his ADA claim," and asked to reverse the District Court's Order "except insofar as the district court declined jurisdiction over Cook's New York State Human Rights Law and New York City Human Rights Law claims."
Plaintiff then commenced the instant action on his NYSHRL and NYCHRL claims by filing his summons and complaint on April 28, 2006.
Deloitte's Motion
Deloitte contends that plaintiff's complaint should be dismissed as untimely because he failed to commence the action within the three-year statute of limitations applicable to actions predicated on statute (CPLR 214(2)). Deloitte argues that since the conduct on which plaintiff's NYSHRL and NYCHRL claims occurred in 1999 and 2000, the plaintiff's causes of action are time-barred, unless the plaintiff's claims fall within the protection of a tolling provision available under the CPLR.
Deloitte notes that plaintiff's NYCHRL claim is also subject to a three year limitations period provided by NYCAC § 8-502(d).
In this latter regard, Deloitte points out that, pursuant to CPLR 205(a), when an action is timely commenced and thereafter terminated due to a procedural defect, plaintiff may begin a new action based on the same causes of action within six months after the "termination" of the first suit without running afoul of an otherwise applicable statute of limitations bar. Deloitte argues that the "termination" of the prior action should be construed as the moment when the plaintiff has exhausted his rights with respect to the first litigation.
Deloitte argues that caselaw supports the position that the six month grace period under CPLR 205(a) began to run on plaintiff's state court action on October 4, 2005 when the final judgment in the Federal Court Action was entered. Deloitte contends that such caselaw instructs that 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 to run is the date on which the dismissal order is entered.
In further support, defendant contends that the New York Court of Appeals has ruled that when a plaintiff seeks discretionary appeal, and leave is granted, then the grace period in New York continues to run as of when the order was entered from which leave to appeal was sought, and that the grace period does not start to run on the later date when the appellate court denies the plaintiff's motion for leave to appeal, since a party may not forestall the commencement of the statutory six-month period merely by continuing to pursue discretionary appeals. Thus, argues Deloitte, plaintiff also should not be permitted to extend the six-month period regarding his state and local claims, as it turns out that he is not challenging their dismissal in the Federal Appeal and elected to proceed with these two claims in state court. Similarly, even when a plaintiff files a notice of appeal as of right, which results in a dismissal other than on the merits, New York courts have ruled that the "termination" occurs as of the date of the order from which the appeal was sought.
Accordingly, Deloitte argues that the plaintiff's pending Federal Appeal should not extend the six month statutory grace period of CPLR § 205(a).
Thus, though plaintiff had two options, namely to commence this action within six months after the District Court order was entered (October 4, 2005) or pursue an appeal in its entirety, so as to appeal the dismissal of his state and local claims, plaintiff followed neither of these alternatives (emphasis in original).
Furthermore, Deloitte contends that any argument that this action was timely commenced since the Federal Appeal of the ADA claim involves the same underlying transaction or occurrence as his NYSHRL and NYCHRL claims must fail. Deloitte points out that any ruling in the Federal Appeal, which concerns only the legal sufficiency to satisfy the ADA's definition of "disability," will have no determinative legal effect on plaintiff's NYSHRL and NYCHRL claims, as the legal sufficiency standards differ. Thus, the pending nature of such appeal should not toll the CPLR § 205(a) grace period in this case.
Finally, Deloitte contends that the anticipated application by plaintiff for sanctions against Deloitte for making this motion is frivolous. To the contrary, Deloitte argues that its motion presents a reasonable and compelling argument that the plaintiff's complaint is untimely. Also, Deloitte asserts that its motion cannot be viewed as one intended to delay the resolution of litigation, which if granted, would do just the opposite.
At oral argument, before transcription began, defendant's counsel argued that, if the Court were to adopt plaintiff's distinction between an action and a claim, plaintiff would not be afforded the protections of 205(a) because the action that was dismissed in the federal court was an action dismissed on the merits ( i.e., federal ADA action), and 205(a) was not intended to toll an action dismissed on the merits. At oral argument, on the record, Deloitte explicitly discussed the purpose behind 205(a) as one designed to preserve the rights of a diligent plaintiff who brought an otherwise timely action, which was the subject of an order of a dismissal that was not on the merits. Deloitte conceded that, if plaintiff had appealed from the federal action in its entirety, as of right, the six-month tolling period would not yet have begun and plaintiff would not have been time-barred from bringing this action.
The parties first orally argued this motion for approximately one hour before the request was made for a reporter and the argument to be made on the record. This point was made during the initial oral argument, before transcription began.
Plaintiff's Opposition
Plaintiff contends that his action is timely because CPLR § 205(a) tolls such claims for six months after the Federal Action on appeal terminates. Plaintiff argues that CPLR 205 permits commencement of this action because (1) it is within six months of termination of the Federal Action in which the state claims were asserted, (2) the state claims were timely asserted in the original action, (3) they were dismissed without prejudice to their prosecution in state court, and (4) they arise out of the same transactions or occurrence that underlie the Federal Action. Plaintiff contends that since the Federal Action is currently on appeal, it cannot be disputed that the action has not terminated (emphasis in original), and thus, the period within which to bring his non-federal claims in State Court had not begun. Relying on Black's Law Dictionary, CPLR 105 Definitions, and case law citing to the predecessor to the CPLR, plaintiff argues that "an action is a proceeding" and "[a] claim is an enforceable right, and usually one of the elements of an action." Thus, there is no basis to use "claim" interchangeably with "action." Plaintiff also points out that the caselaw cited by Deloitte discusses termination of a "litigation" or "action" or "proceeding," as opposed to claim. Plaintiff argues that the statute should be interpreted according to its plain language meaning, which asserts that the six-month period begins at the termination of the action, as opposed to the claim.
Plaintiff argues that the cases cited by defendants are inapplicable as three of the cases ruled on the timeliness of actions where the appeal was at the discretion of the Court, as opposed to being "as of right." The fourth case ruled on the applicability of 205(a) to a new action when the original action was dismissed for failure to prosecute, which is a noted exception to 205(a). Plaintiff contends that CPLR 205(a) "tolls claims while the dismissal of an action in which they were brought is on appeal as of right" (emphasis in original). That is, plaintiff asserts that the action is ongoing in these circumstances and the six-month clock tolling the statute of limitations does not begin to run until the federal action has been terminated.
Plaintiff argues that caselaw provides that CPLR 205(a) tolls even those claims that were not specifically appealed, because they arose from the same "general allegations and operative facts as the previous [appealed] action." Specifically, the plaintiff reports that the Second Department has permitted the re-filing of a claim where the "subject matter underlying the [cause of action] was not finally determined until the time of the decision on the appeal from the remand." Plaintiff contends that while res judicata cannot be used by defendants to preclude plaintiff's state and local claims, if the Second Circuit makes findings of fact in the Federal Action, either party will attempt to invoke collateral estoppel and foreclose certain factual issues in its favor in the instant action.
Plaintiff further contends that the legislature could not have intended to essentially require pendant state claims, dismissed without prejudice, to be tried concurrently with the federal court claims that comprise the same facts and circumstances. Plaintiff asserts that, because there are multiple claims within a given action, granting defendants' motion would "open a Pandora's box of procedural questions and issues which would not be easily resolved, and would lengthen and complicate cases in which 205(a) comes into play." Finally, plaintiff asserts that supporting case law requires that 205(a) be "liberally construed."
Plaintiff also renews his request that sanctions in the form of attorneys' fees and costs be imposed on Deloitte if the Court denies the motion, on the grounds that Deloitte's position lacks basis in law, mischaracterizes the caselaw, is unreasonable, and ignores the plain meaning of the statute. Plaintiff also contends that, because Deloitte's motion is clearly unreasonable, it must have been brought to delay the litigation of plaintiff's state and local claims, and that motions to dismiss, when they lack merit, actually cause delay. Further, plaintiff points out that Deloitte was on notice of plaintiff's intent to request sanctions (as is reflected in the Court's June 6, 2006 order) if it proceeded with this motion.
At oral argument, plaintiff emphasized the preference of the courts to not arrive at inconsistent decisions and asserted that Deloitte's interpretation of 205(a) would force a court's review of another court's factual determinations. Specifically, plaintiff argued that this interpretation would "force plaintiffs to split claims . . . and it would force them to commence claims when in some instances they would prefer to wait for the federal court's determination to foreclose certain factual issues." Plaintiff additionally proposed a series of potential complications that could arise should the Court follow Deloitte's interpretation of the statute. For example, plaintiff suggested that Courts would be forced to review the briefs and papers filed in an appeal of the original action and, further, these briefs may be ambiguous regarding which claims were specifically appealed from and when. Plaintiff further asserted that, should the Court adopt Deloitte's interpretation, it must reject the date presented by Deloitte as beginning the tolling period, and should instead adopt February 1, 2006, the date that plaintiff's state claims were not definitively pursued on appeal. This would have the effect of setting the six-month cut-off date at August 1, 2006, making plaintiff's filing timely brought.
Analysis
This court is required to determine the discreet issue of the application of CPLR § 205(a) to non-federal claims which were timely asserted in a federal action but dismissed, without prejudice, while the federal claim proceeds on appeal, as of right. The parties agree that the non-federal claims are not being pursued in the Federal Court Action. Thus, the question of the timeliness of plaintiff's non-federal claims is in essence whether such claims were "terminated" or whether they have not been "terminated" due to the pending Federal Appeal.
CPLR § 205(a) provides:
If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain 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.
Severance of pendent state claims from a federal claim triggers the provisions of CPLR 205(a) ( Martin v. Adler, 135 Misc 2d 383, 515 NYS2d 400 [NY Sup 1987]). As stated in Kleinberger v. Town of Sharon, 116 AD2d 367, 501 NYS2d 746 [3rd Dept 1986]) dismissal of pendent State-law claims because of insubstantial federal claims triggers the protection of CPLR 205(a), thereby affording plaintiffs six months within which to bring another action in State court (citing Dunton v. County of Suffolk, 729 F 2d 903, 911, n. 8,).
This Court finds that although the Federal "Action" has not been terminated, the non-federal claims, which were dismissed without prejudice, were terminated for purposes of CPLR 205(a). Caselaw supports the position that upon the dismissal of a pendant non-federal claim by a federal court, plaintiffs are afforded six months within which to bring another action in State court ( Kleinberger v. Town of Sharon, supra). Contrary to plaintiff's contention, the term "claim" has been used interchangeably with "action" when determining whether CPLR 205(a) is invoked ( see Bloom v. New York City Bd. of Ed., 2004 WL 639613 [SDNY] [in a federal action alleging ADA and state and local claims, Court stated that "if plaintiff's non-federal claims were dismissed for failure to file a notice of claim in timely manner, Section 205 would give plaintiff an additional six months to file a new action" (emphasis added); Veloz v. State of New York, 1999 US Dist Lexis 12989 [SDNY] [stating that plaintiff's "pendent state claims are dismissed" and that if plaintiff refiled his case against defendants in state court, his "claim would not be time barred if filed and served within six months of this Court's dismissal of his state claims"]; Reynolds v. Mercy Hosp., 861 F Supp 214 [WDNY 1994] citing Denehy v. St. John's Queens Hosp., 114 AD2d 991, 495 NYS2d 431 [advising, upon dismissing all federal law claims and pendent State law claims for want of subject matter jurisdiction, that plaintiff was not barred from commencing, within six months of the dismissal, an action in State court based on the same set of transactions or occurrences]; Stylianou v. Incorporated Village of Old Field, 23 AD3d 454, 805 NYS2d 573 [2nd Dept 2005] [same]; see also Yates v Genesee, 299 AD2d 900 [4th Dept 2002]; Russo v. Iacono, 73 AD2d 913 [2nd Dept 1980] [defendant's causes of action in the amended counterclaim, which were previously dismissed for failure to state a cause of action, were timely since 205(a) "permits a new action upon the same causes of action within six months after the termination"]). Thus, in situations where causes of action within a complaint are dismissed for reasons other than for neglect to prosecute the action, or a final judgment upon the merits, CPLR 205 permits the re-filing of the complaint upon such causes of action within six months of their dismissal. In other words "CPLR 205(a) applies to a new cause of action" brought by a plaintiff "based on the transactions or occurrences of a cause of action that had been terminated if a cause of action was timely commenced in the first instance" ( Benedict v. Xerox Corp., 144 Misc 2d 490 [Sup. Ct. Monroe County 1989]).
In light of this Court's determination that the non-federal claims were terminated by the dismissal order of the District Court, the period within which plaintiff must bring hisnon-federal claims in State Court began upon the entry of the order dismissing such claims.
Contrary to plaintiff's contentions, state claims which are dismissed by a federal court are treated as actions that need be brought within six months of their dismissal. Thus, plaintiff's distinction between claims and action is unfounded, and lacks merit. For example, in Veloz v. State of New York 1999 US dist. LEXIS 12989 [SDNY 1999]), the Southern District relied in part on CPLR 205(a) and noted that though plaintiff's "pendent state claims" were dismissed, such "claim would not be time barred if filed and served within six months of this Court's dismissal of his state claims" (emphasis added). The Court will not consider the future disposition of the Federal Action, of which the state court claims are no longer part, as the date from which plaintiff may commence a new action on such non-federal claims.
Further, the pendency of plaintiff's Federal Action is of no moment to plaintiff's state and local claims, where the state and local claims on which this action is based have no potential for further litigation and no longer exist in the Federal Action. As to the state and local claims, their survival is not contested on appeal, and thus, the dismissal of such claims operates to terminate their existence.
Having determined that the claims upon which plaintiff's instant action are based have been "terminated," the Court must next determine the date at which such termination occurred.
The date of entry of the dismissal order has been determined to be the controlling date for section 205(a) purposes (e.g., Yates v. Genesee County Hospice, 299 AD2d 900, 750 NYS2d 727 [4th Dept 2002], app. den. 99 NY2d 511, 760 NYS2d 102; Brumel v. Hartford Fire Ins. Co., 158 Misc 311, 285 NYS 611).
Yet, it has been held that under CPLR 205(a), an action does not terminate upon entry of the order dismissing the action ( Maki v. Grenda, 224 AD2d 996 [4th Dept 1996] [dismissal of federal action]), but instead, at the point "where a plaintiff has exhausted its rights with respect to the litigation" ( Id., citing Franklin Nursing Home v. Axelrod, 148 Misc 2d 556 [Sup. Ct. New York County 1990]).
In Franklin, the Southern District Court of New York dismissed plaintiff's state law claims on jurisdictional grounds and reserved decision on the plaintiff's remaining federal claim. The order dismissing plaintiff's state claims was entered on August 27, 1985. The plaintiff, however, reasserted the state law claims in state court on February 28, 1986 (six months and one day later). The federal action, however, was transferred to another Southern District Court judge, who, almost two years later by order dated August 7, 1987, denied the federal claim and summarily dismissed the complaint. Plaintiff then appealed both orders by notice dated September 23, 1987. Like defendants herein, defendant argued that the federal action with respect to the state law claims was "terminated" back in August 1985, and because plaintiff did not pursue an appeal from the dismissal of the state law claims, the six-month limitations grace period after an appeal did not apply. Like plaintiff herein, the plaintiff maintained that the "termination" of the federal action occurred, at the earliest, in August 1987, when the federal complaint was dismissed in its entirety. Plaintiff also argued that it did not have an opportunity to appeal the dismissal of the state law claims until judgment was entered in 1987, and that it did appeal the state law claim, albeit not vigorously. The Court declared the action timely pursuant to CPLR § 205(a) reasoning:
plaintiff was unable to appeal the dismissal of the state law claims until judgment was entered in August 1987 . . . Because the point of termination is considered generally to be the point where a plaintiff has exhausted its rights with respect to the litigation (citations omitted) and because the Federal Rules state that the federal action is not terminated until the entry of judgment adjudicating all claims . . . the earliest termination point is entry of judgment in the federal action in August 1987.
Even adopting the position taken in Franklin, that the earlier dismissal of the state claims did not operate to "terminate" such claims since judgment adjudicating the entire action did not occur until the latter date, the Court notes that (1) the Court in Franklin utilized the date of entry of judgment of the dismissal order, and (2) the judgment in the Federal Action at issue herein was entered on October 4, 2005, over six months prior to the commencement to this action.
Other courts have expressly rejected use of the date of entry of the dismissal order as the "termination" date, and determined that service of a copy of the dismissal order with notice of entry was sufficient to commence a CPLR 205(a) action within the six month time period ( see Marinelli v. Sroka, 8 Misc 3d 863, 866 [Nassau County 2005], citing Vasquez v. Wood, 18 AD3d 645 [2nd Dept 2005] [where dismissal "was without prejudice to the commencement of a new action based on the same occurrence within six months of service of a copy of the court's order, with notice of entry, pursuant to CPLR 205 (a)," and "instant action was commenced within that six-month period," action was timely]).
In Maki v. Grenda ( 224 AD2d 996, 637 NYS2d 553 [4th Dept 1996]), plaintiff filed a federal action, in which by order entered October 19, 1993, the Federal court dismissed the pendent State law claims unless plaintiff repleaded her RICO claim within thirty days. In determining whether plaintiff's state action, which was commenced within six months after the termination of her action in Federal, was timely, the Court held that contrary to defendants' contention, the Federal action did not terminate upon entry of that order. Citing Franklin Nursing Home v. Axelrod, 148 Misc 2d 556, supra) the Court stated that under CPLR 205(a), "the point of termination is considered generally to be the point where a plaintiff has exhausted its rights with respect to the litigation." Thus, the Court concluded that plaintiff's rights were not exhausted with respect to the action in Federal court until the RICO claim was not timely repleaded. Since the Federal action did not terminate until November 18, 1993, thirty days after entry of the order, the action, which was commenced on April 21, 1994, was timely.
Here, however, the District Court's dismissal was not conditioned upon plaintiff's failure to satisfy a condition antecedent. Further, such cases do not account for the circumstance where portions of a dismissal order are under appellate review.
As for dismissed actions under appellate review, it has been held that 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, but commences on the date of determination of an appeal on the merits ( Lehman Brothers, Inc v. Hughes Hubbard Reed, L.L.P., 92 NY2d 1014 citing see, I Weinstein-Korn-Miller, NY Civ. Prac. ¶ 205.07); Dinerman v. Sutton, 45 Misc 2d 791 [Sup Ct Queens County 1965]). This is so because a party should not be permitted to "forestall the commencement of the statutory six-month period merely by continuing to pursue discretionary appellate review" ( Cohoes Hous. Auth. v. Ippolito-Lutz, Inc., 49 NY2d 961, 428 NYS2d 948, 406 NE2d 803, affg. 65 AD2d 666, 409 NYS2d 811] [stating that 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]). Further, since the grace period commences from the date of determination of an appeal on the merits, CPLR 205(a) cannot be relied upon by a plaintiff where the appeal is later "dismissed" after a notice of appeal is filed ( Dinerman v. Sutton, 45 Misc 2d 791, supra).
In light of the unconditional dismissal of plaintiff's non-federal claims, and entry of judgment thereon, any "final determination" by the Federal Appeals courts of the federal claims could not operate to "terminate" plaintiff's claims, since plaintiff failed to pursue these claims on appeal. Thus, plaintiff's pending appeal of her federal claims do not extend the time within which plaintiff must have brought his non-federal claims in State court. Since the six-month limitations grace period after an appeal does not apply to plaintiff's non-federal claims, plaintiff was required to file the instant action within six months of entry of the order dismissing such claims.
Plaintiff's reliance on Gross v. Newburger, Loeb Co., Inc., 85 AD2d 709, 445 NYS2d 830 [2nd Dept 1981]) to resuscitate his state and local claims is misplaced. In Gross, Gross' second cause of action for conversion was previously alleged as a third counterclaim in a federal action against it. During the federal proceeding, a decision in favor of Gross on the third counterclaim was reversed with instructions to dismiss it upon the remand to re-evaluate damages on the three counterclaims decided in favor of the Federal defendants. The third counterclaim was later dismissed due to the lack of subject matter jurisdiction. In determining whether the second cause of action was timely, the Court stated:
. . . the Second Circuit expressly dismissed the counterclaim for conversion for lack of subject matter jurisdiction [but] nonetheless continued to consider the issue of the stock warrants, which are the sine qua non of the conversion claim. It directed the District Court, upon the remand, to determine "whether the value of the warrants should be included in determining defendants' [the present plaintiffs'] capital interests in the Partnership" (citations omitted). And, in its decision on the appeal from the remand, rendered November 19, 1979 (citations omitted) the court began its discussion of the District Court's consideration of that issue by stating: "We now return to the question of whether Gross can be compensated in this action for the conversion of his stock warrants." The consideration of the stock warrants by the Federal courts (both in the unreported decision of the District Court upon the remand and in the decision on the appeal therefrom) makes it clear that the subject matter of the present conversion claim was under review until November, 1979. Whatever the Circuit Court of Appeals may have intended by its dismissal of the third counterclaim for conversion qua conversion, the result of its direction as to the stock warrants upon the remand was to conceive a twin "conversion claim" that was not dismissed.
Thus, since the subject matter underlying the second cause of action was not finally determined until the time of the decision on the appeal from the remand, the second cause of action was deemed timely under CPLR 205 (a).
Here, it cannot be said that the non-federal claims are the sine qua non of plaintiff's federal ADA claim, which, even according to the District Court, is measured under a narrower standard. Nor is there any further consideration being undertaken by the federal courts of the non-federal claims.
The possibility that plaintiff may be prejudiced due to collateral estoppel, by a requirement that she file an action within six months after dismissal, while the federal action is pending, is not without basis ( see Lamontagne v. Board of Trustee of the United Wire, Metal Mach. Pension Fund, 183 AD2d 424 [1st Dept 1992]; see also Greenburg v. New York City Transit Auth., 336 F Supp2d 225 [EDNY 2004]). 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 non-federal claims, thereby necessitating the commencement of 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.
The purported "problems" alleged by plaintiff by requiring that plaintiffs commence an action within six months of their dismissal from a federal court, while the federal action is still pending, lack merit.
Plaintiff's argument that a state court and federal court should not simultaneously consider the same facts and transactions, is undermined by plaintiff's voluntarily submission of the facts to state court by commencement of the state court action.
Thus, this Court determines that for purposes of CPLR § 205(a), this instant action is deemed to have been terminated when the District Court dismissed the claims upon which this action is based, and having failed to commence this action within six months after the entry of the dismissal order, this action is untimely.
To hold otherwise would undermine the purpose of the statute of limitations. Statutes of limitations are promulgated to establish "a deadline after which the defendant may legitimately have peace of mind" and to recognize that after a certain period of time it is "unfair to require a defendant to attempt to piece together his defense to an old claim" ( Walker v. Armco Steel, 446 US 740, 751). "The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time has elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of giving repose to human affairsúúúú The primary consideration underlying such legislation is undoubtedly one of fairness to the defendant. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations. . . ." 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 ( Bernardez v. Federal Deposit Ins. Corp., 104 AD2d 309, 478 NYS2d 644 [1st Dept 1984]). 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.
In light of the above, plaintiff's request for sanctions lacks merit, and is therefore denied.
Based on foregoing, it is hereby
ORDERED that defendants' motion to dismiss the complaint as untimely is granted, and the Clerk may enter judgment accordingly; and it is further
ORDERED that plaintiff's application for sanctions is denied; and it is further
ORDERED that defendants shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that defendants' motion to dismiss the complaint as untimely is granted, and the Clerk may enter judgment accordingly; and it is further
ORDERED that plaintiff's application for sanctions is denied; and it is further
ORDERED that defendants shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.