Opinion
02 Civ. 3728 (DLC) (JCF)
August 27, 2003
REPORT AND RECOMMENDATION
The plaintiff, Lila Gilbert ("Lila"), proceeding pro se, brings this action against her son and daughter-in-law, Dale and Sandee Gilbert (respectively, "Dale" and "Sandee"), asserting what are most generously interpreted as claims of elder abuse, breach of contract, unjust enrichment, and conversion. The defendants now move to dismiss all of the plaintiff`s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, I recommend that the motion be granted with respect to the elder abuse claim and otherwise denied.
Background
In 1991, Lila gave Dale and Sandee $20,000. (Complaint, ¶ 22). Approximately a year later, in 1992, Lila placed another sum of money into an Albany, New York bank account that was registered in Dale's name. (Complaint, ¶ 22). Lila contends that the $20,000 she gave to her son and daughter-in-law in 1991 was a loan and that the money placed in the bank account in 1992 was to be used for building permits and supplies in connection with a home Lila was building for herself in Albany. (Complaint, ¶ 22-23).
It is unclear from the complaint exactly how much money Ms. Gilbert claims to have put in the Albany account. For example, she alleges that she deposited $20,000 into the account (Complaint, ¶ 22) but claims only $15,000 in damages with respect to the money in the bank account. (Complaint at 14). Moreover, in several different documents filed with the court, the plaintiff mentions that she placed $41,000 in the bank account. (Motion for Discovery dated January 21, 2003, at 7; Motion for Discovery dated April 16, 2003, at 4; Second Penalty Request re: Motion for Discovery dated June 3, 2002, at 5; Reply in Opposition to Motion to Dismiss and Third Penalty Request re: Motion for Discovery dated June 17, 2003, at 4-6).
In her complaint, Ms. Gilbert further details several instances of alleged elder abuse. (Complaint at 1-5 and 11-13). The plaintiff is now seeking $68,614 in damages on the loan, including principal and interest, $15,000 in damages in connection with the money placed in the bank account, $1,000,000 in damages for elder abuse, and $1,000,000 for hedonic losses caused by the defendants' failure to repay her.
Discussion
A. Legal Framework
In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); Scheur v. Rhodes, 416 U.S. 232, 236 (1974); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1052 (2d Cir. 1993). The complaint should be read generously, and dismissal is not warranted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
B. Elder Abuse
For the purposes of this motion, it is unnecessary to determine whether the acts alleged by the plaintiff rise to a level of "elder abuse." Neither federal nor New York law recognizes such a cause of action. California law does establish a civil action for elder abuse, but because Lila is not a resident of California, she is not a member of the class that California'`s statute seeks to protect. California's elder abuse law applies to "person [s] residing in this state, 65 years of age or older." California Welfare and Institutions Code § 15610.27. Since Lila does not have a right of action under the only potentially relevant statute, her claims for elder abuse should be dismissed.
C. Claims for Unpaid Loans and Bank Deposits
1. Statute of Limitations
The defendants assert that Lila's claims for damages related to unpaid loans and to money placed in Dale's Albany bank account are barred by the six year statute of limitations contained in section 213 of the New York Civil Practice Law and Rules.
C.P.L.R. § 213 provides that "an action for which no limitation is specifically prescribed by law . . . must be commenced within six years."
However, partial repayment of a loan will generally revive the statute of limitations with respect to a claim for breach of a loan agreement. Security Bank of New York v. Finkelstein, 160 A.D. 315, 145 N.Y.S.2d 5, 9 (1st Dep't 1913). In In re Lafayette Hotel Partnership, 227 B.R. 445 (S.D.N.Y. 1998), the plaintiff sought to recover money it had lent to the defendant. Although the money was loaned more than ten years before the commencement of the action, the court found that the debtor's "partial repayment of these claims" prior to the expiration of the statute of limitations period completely "revived the statute." Id. at 454.
The plaintiff here seeks to recover repayment of loans she purportedly made to Dale and Sandee in 1991 and 1992. Normally, these claims would be barred by the six year statute of limitations. However, Lila alleges that Dale paid $100 to her in July 2002 as partial repayment. (Reply in Opposition to Motion to Dismiss dated June 17, 2003 ("Pl. Opp.") at 8th unnumbered page; Check 5152 made payable to Lila Gilbert dated July 3, 2002 ("Check 5152"), attached as Exh. 3 to the Plaintiff's Demand for Immediate Specific Reply to Each and Every Allegation of Elder Abuse, Confiscation of Funds, Willful Failure to Repay Substantial Loan Now Overdue Thirteen Years). Reading the plaintiff's papers in the light most favorable to her, the $100 check from Dale, if made to repay a loan to Lila, would revive the six year statute of limitations so that the statute of limitations would begin to run from the last date of repayment, here, July 3, 2002. (Check 5152). Thus, at this stage of the litigation, it would be inappropriate to dismiss these claims based upon the expiration of the statute of limitations.
2. Failure to State a Claim
The defendants further argue that Lila's claim for money she deposited in the Albany bank account should be dismissed pursuant to Rule 12(b) (6) because it fails to state a claim for which relief may be granted. Specifically, the defendants contend that the money deposited in Dale's Albany bank account was a gift from Lila to Sandee and Dale and, therefore, Lila has no rights with respect to any money she deposited in that account.
In New York, a gift is established when: (1) there is clear and convincing evidence of donative intent, (2) the property is delivered to the donee, and (3) the property has been accepted by the donee. See Lichtenstein v. Eljohnan Inc., 161 A.D.2d 397, 555 N.Y.S.2d 331 (1st Dep't 1990). Lila claims that she deposited the money in the Albany bank account in 1992 as a fund "to pay for building permits and supplies on a house [she] was building in Albany." (Complaint, ¶ 22). This allegation contradicts the defendants' assertion that the money placed in the Albany bank account was a gift. Indeed, "when something is given to the recipient for the benefit of persons other than the recipient, the transfer is not a gift." 62 New York Jurisprudence 2d, Gifts § 10 (2d ed. 1999) (citing Mann v. Shrive, 111 A.D. 452, 97 N.Y.S. 688 (2d Dep't 1906)). In this case, since the complaint alleges that the money placed in the Albany bank account was to be used for the benefit of Lila, not Dale or Sandee, the defendants' motion to dismiss Lila's claim relating to the account should be denied.
C. Jurisdiction Over the Remaining Claims
The defendants did not raise the issue of subject matter jurisdiction, but it is nevertheless the Court's duty to do so.
After the dismissal of Lila's elder abuse claims, she is left only with claims in which she seeks to recover the money she lent to the defendants in 1991 and money that she deposited in Dale's Albany bank account in 1992. Exclusive of interest and costs, the maximum amount of actual damages that the plaintiff could recover with respect to these claims is $61,000. This amount by itself is plainly insufficient to meet the amount in controversy requirement of $75,000 for claims based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).
Although the plaintiff only asked for $15,000 in damages with respect to the money she placed in the Albany bank account in her complaint, in subsequent papers filed with the Court she has indicated that she placed as much as $41,000 into this account. Thus, for the purposes of this motion I will assume that the plaintiff`s actual damages for her claim relating to the Albany bank account is $41,000. Combined with her claim for $20,000 for the 1991 loan, the total actual damages for these two claims amounts to $61,000.
The amount of damages requested for a claim that is not legally cognizable cannot count towards the total amount in controversy. For example, in Gucciardo v. Reliance Insurance Co., 84 F. Supp.2d 399 (E.D.N.Y. 2000), federal jurisdiction was initially premised on diversity of citizenship. Id. at 403. Upon review of the plaintiff's allegations, the court noted that the plaintiff's damages could only possibly amount to $56,767, below the jurisdictional threshold of 28 U.S.C. § 1332 (a). In reaching that conclusion, the court declined to factor in any potential damages that the plaintiff claimed to incur based on the defendant's alleged violation of N.Y. Insurance Law § 2601. Id. The court concluded that this statute, "which prohibits unfair claim settlement practices, does not support an award of damages because [it] grants no private right of action to an insured." Id. (citation omitted); see Camprubi-Soms v. Aranda, No. 00 Civ. 9626, 2001 WL 823865, at * 3-4 (S.D.N.Y. July 19, 2001). Similarly, in this case, Lila's complaint does not seek damages that meet the threshold for diversity jurisdiction once her claims of elder abuse are omitted.
Nevertheless, I am not recommending that the complaint as a whole be dismissed at this time, since the parties have not yet had the opportunity to address subject matter jurisdiction. Rather, in the event that this Report and Recommendation is adopted, I will direct the parties to address that issue in light of the legal principles I have outlined here.
Conclusion
For the reasons set forth above, I recommend that the defendants' motion to dismiss be granted with respect to the claims of elder abuse and denied in all other respects. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Denise L. Cote, Room 1040, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007, Failure to file timely objections will preclude appellate review.