The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
The motions to dismiss in the two above named cases involve identical legal issues. Since the underlying facts are likewise identical, both motions are considered in this opinion.
Before examining the legal issues involved, a brief recitation of the facts is necessary. Messrs. Cullinan and Meyer were long-standing members of the Nassau County Police Department when, in 1970, a Nassau Grand Jury indicted them both for attempted grand larceny in the first degree. Both men pled not guilty.
On the day of indictment both Cullinan and Meyer were suspended from the police department without pay; subsequently, on July 2, 1970, both men were charged by the department with violations of department regulations. They both entered not guilty pleas in this civil proceeding.
A departmental trial scheduled for November 30, 1970 was adjourned several times until April 22, 1971. On that date, plaintiffs' requests for a further adjournment were denied and the departmental trial commenced.
On advice of counsel, both men appeared without counsel and refused to testify on their own behalf. Defendant Quinn, who was the trial examiner, found them guilty of the charges. On June 4, 1971 defendant Frank ordered that they be dismissed from the force.
In January 1972, the criminal case went to trial. On January 14, the jury returned a verdict of not guilty as to both men.
Both of the plaintiffs herein brought Article 78 proceedings in the state court seeking to set aside their removal on the grounds that they were denied their right to counsel in the administrative hearing. The Article 78 proceedings were dismissed by the New York State Supreme Court, Nassau County, in August 1971. The Appellate Division, 2d Department affirmed in October 1973 and in May 1973 Cullinan was denied leave to appeal by the Court of Appeals.
Later, both plaintiffs petitioned defendant Frank to reconsider his order of dismissal. Reconsideration was denied. Both the New York State Supreme Court and the Appellate Division affirmed the denial of reconsideration.
Plaintiffs filed these actions alleging jurisdiction pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. §§ 1983, 1985. Meyer's suit was commenced by service of summons and complaint on June 10, 1975. Cullinan's summons and complaint were served on September 5, 1975. The gravamen of plaintiffs' complaints is that the departmental trial violated their Fifth Amendment privilege against self-incrimination and their Fourteenth Amendment right to due process of law.
Defendants Frank and Quinn have moved to dismiss the complaints on various grounds. Since this court agrees that the action is barred by the statute of limitations, the other grounds need not be considered.
In determining the timeliness of an action brought under the Civil Rights Act, the federal court borrows the most analogous state statute of limitations. Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963); see O'Sullivan v. Felix, 233 U.S. 318, 34 S. Ct. 596, 58 L. Ed. 980 (1914). The three-year statute of limitations prescribed by New York CPLR § 214(2) (McKinney's 1963) is the most appropriate state statute for the cases at bar. See Ortiz v. LaVallee, 442 F.2d 912, 914 (2d Cir. 1971).
Since plaintiffs were dismissed from the Police Department in June of 1971 there is no question that, absent a tolling of the statute, these actions would be barred by the statute of limitations. Plaintiffs rely on Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974) and Mizell v. North Broward Hospital District, 427 F.2d 468 (5th Cir. 1970), reh. en banc den. (1970), in arguing that the statute was, or should have been, tolled by bringing the state court action, and that it did not begin to run again until mid 1973 when leave to appeal to the Court of Appeals was denied.
Nothing in Kaiser compels a decision that the statute should be tolled by the state court action. Mizell did not explicitly rule on the question of whether the statute of limitations therein should have been tolled, but merely remanded to the district court for ...