applying three-year statute as applied by federal courts
How later courts described this case
- applying three-year statute as applied by federal courts
Written by the judges who cited it.
Later courts went against this
Overruled — as noted by a later court
The City rightly contends that after the Supreme Court’s decision in Wilson v Garcia (471 US 261, supra) our holding in Fields v Board of Higher Educ. (63 NY2d 817, affg 94 AD2d 202) that CPLR 214 (2) governing liability created by statute applies to section 1983 actions is no longer good law.
medium confidence
The opinion
Murphy, P. J. (dissenting).
The plaintiff had been an assistant professor at Bronx Community College. He retired in May of 1976 at the age of 65. The plaintiff had initially been denied promotion in May of 1975. After he had exhausted the grievance machinery, the denial of promotion was confirmed on November 18, 1975.
Upon this appeal, the plaintiff’s essential claims are found in the first and third causes. He alleges that defendants conspired and deprived him of his civil rights under section 1983 of title 42 of the United States Code. The defendants, inter alia, are charged with harassing, intimidating and depriving him of his rightful promotion.
This action was commenced on March 4,1977. Under the authority of Taylor v Mayone (626 F2d 247), Special Term applied the three-year Statute of Limitations found in CPLR 214 (subd 2). It thus found the first and third causes to be timely. It also permitted the fourth cause, seeking punitive damages, to stand as an incident to the damages sought in the first and third causes. The second and fifth causes were dismissed; their dismissal is not the subject of this appeal.
*210 For the reasons stated by Justice Greenfield in his opinion in Pitt v City of New York ( 111 Misc 2d 569, 576-577 ), this court need not and should not follow the Second Circuit in applying the three-year statute of CPLR 214 (subd 2). The Federal courts are required to apply the forum State’s Statute of Limitations most analogous to the plaintiff’s claims (supra, at pp 571-572). In this proceeding, the alleged harassment, emotional intimidation and wrongful denial of promotion may be characterized as in the nature of personal injuries. Hence, the first and third causes are governed by the 1-year and 90-day statute of section 50-i of the General Municipal Law.
Therefore, the first and third causes should be dismissed as untimely under section 50-i. The fourth cause for punitive damages necessarily falls with the dismissal of the first and third causes. Accordingly, the order of the Supreme Court, New York County (Riccobono, J.), entered October 30, 1981, should be modified, on the law, by dismissing the first, third and fourth causes, and as modified, it should be affirmed.
Asch and Milonas, JJ., concur with Alexander, J.; Murphy, P. J., and Ross, J., dissent in an opinion by Murphy, P. J.
In Appeal No. 15635, order, Supreme Court, New York County, entered on October 30, 1981, affirmed, without costs and without disbursements.
Ross and Milonas concur with Alexander, J.; Murphy, P. J., and Bloom, J., dissent and would affirm for the reasons stated by Greenfield, J.
In Appeal No. 15636, order, Supreme Court, New York County, entered on January 12,1982, reversed, on the law, without costs and without disbursements, the motion to dismiss the complaint as against defendant James Mugan denied and the judgment vacated and the complaint reinstated.