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CESTARO v. MACKELL

April 1, 1977

G. Thomas CESTARO et al., Plaintiffs,
v.
Thomas J. MACKELL et al., Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM

 GEORGE C. PRATT, District Judge:

 Invoking the fourth, fifth, sixth, eighth, and fourteenth amendments and 42 U.S.C. § 1983, *fn1" plaintiffs seek monetary, declaratory, and injunctive relief to remedy injuries allegedly incurred because of defendants' conspiratorial violations of their civil rights. Defendants have moved for dismissal. For the reasons set forth below, I find that the action is time-barred and that defendants' motions must therefore be granted. The following discussion necessarily assumes the complaint's allegations to be true.

 THE COMPLAINT

 The complaint names as plaintiffs: Sta-Brite Auto Painting Corporation, G. Thomas Cestaro, Catherine Cestaro, and Richard Marchetti. Sta-Brite is a New York corporation, which from 1963 until April 26, 1971, repaired cars for defendant Avis Rent-A-Car Systems, Inc., as a contractor mechanic. Mr. Cestaro was the principal owner, officer, and operator of Sta-Brite. His wife, Mrs. Cestaro, was a part-time secretary for Sta-Brite and held the title "Corporate Secretary". Plaintiff Marchetti was employed by Avis as a damage control supervisor until Avis suspended him on April 27, 1971, and finally terminated his employment on June 7, 1971.

 Plaintiffs now seek relief from two groups of defendants. *fn2" One includes certain individuals who at the time of the alleged conspiracy were members of the office of then Queens County District Attorney Thomas Mackell. The complaint accordingly refers to them as the "Mackell defendants". The second group of defendants, the "Avis defendants", includes Avis Rent-A-Car Systems, Inc., its corporate parent International Telephone and Telegraph Corporation, and certain individuals employed by Avis at the time of the alleged conspiracy.

 Plaintiffs allege that "the Mackell defendants acted pursuant to a long-standing agreement and conspiracy with the Avis defendants to use the powers and authority of the Queens County District Attorney's office to enforce the private interests and whims of the Avis defendants in return for money and other favors supplied by [the] Avis [defendants] to the Mackell defendants." According to the complaint, the conspiracy culminated in the groundless prosecution of plaintiffs on numerous charges allegedly arising out of their submission of fraudulent bills to Avis, with plaintiffs ultimately being coerced into accepting an agreement whereby: Sta-Brite pled guilty to one count of grand larceny in the third degree, a Class E felony under New York law; Mr. and Mrs. Cestaro executed a limited release in favor of Avis; Marchetti executed a general release in favor of Avis and the Queens County District Attorney's office; and the District Attorney's office in return moved to dismiss the remaining charges against Sta-Brite and all the charges against Mr. Cestaro, Mrs. Cestaro, and Marchetti.

 The complaint further asserts that the Mackell and Avis defendants conspired to conceal the alleged conspiracy, and that plaintiffs were unaware of the conspiracy until "public hearings held by the New York State Joint Legislative Committee on Crime on May 3 and October 11, 1973 and until the trial of defendant Monty in February and March 1974". The complaint also alleges that in the fall of 1973 the defendants twice attempted unsuccessfully to bribe the plaintiffs into having the legislative committee call off its investigation. *fn3"

 DISCUSSION

 One of the grounds common to all defendants' motions to dismiss is that plaintiffs' claims are time-barred. Absent an applicable federal statute of limitations, the court must look to state law. Specifically, "An action brought under the federal Civil Rights Act is subject to the statute of limitations the state courts would apply in an analogous state action." Meyer v. Frank, 550 F.2d 726, 728 (C.A.2 1977). And this court has applied the same principle to civil rights claims asserted directly under the Constitution. Ervin v. Lanier, 404 F. Supp. 15, 20 (E.D.N.Y.1975) (fourth amendment). Moreover, whatever statutory period applies to plaintiffs' claims for damages also applies to their claims for equitable relief. Mizell v. North Broward Hospital District, 427 F.2d 468 (C.A.5 1970); Baker v. F & F Investment, 420 F.2d 1191, 1193 (C.A.7), cert. denied sub nom. Universal Builders Inc. v. Clark, 400 U.S. 821, 91 S. Ct. 40, 27 L. Ed. 2d 49 (1970); Needleman v. Bohlen, 386 F. Supp. 741, 749 (D.Mass.1974).

 What then would be the applicable New York limitations period? Normally, "the applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y.C.P.L.R. § 214(2) -- liability based on a statute." Kaiser v. Cahn, 510 F.2d 282, 284 (C.A.2 1974) (42 U.S.C. § 1983); accord, Ervin v. Lanier, supra (fourth amendment). Since the complaint was filed on April 12, 1976, ordinarily only acts which occurred after April 11, 1973 would be actionable. Virtually all the events described in the complaint precede that date. However, plaintiffs make three arguments in an attempt to save their action.

 First, plaintiffs point to the unsuccessful attempts to bribe them which defendants allegedly made in the fall of 1973. But any such attempts are of no significance here since none is alleged to have caused any plaintiff actual injury. Mizell v. North Broward Hospital District, supra, 427 F.2d at 475; Hoffman v. Halden, 268 F.2d 280, 302 (C.A.9 1959). According to the complaint, the last act of defendants that actually injured the plaintiffs occurred on June 9, 1972, when the defendants allegedly coerced Sta-Brite into entering a guilty plea and the Cestaros and Marchetti into executing releases. That was well over three years before plaintiffs filed their complaint.

 Second, plaintiffs urge that defendants are estopped from asserting any statute-of-limitations defense. But plaintiffs do not claim that defendants misled them as to either the relevant statutory requirements or the need to comply with them. Compare Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959). Moreover, by May of 1973, at the latest, plaintiffs were fully aware of the nature of the conduct which they now ascribe to the defendants; yet, this action was not filed until well over two years later. Under such circumstances, equity clearly should not bar application of the statute of limitations.

 Plaintiffs' third argument to escape the three year limitations period is based on the concealment doctrine. Under this federal doctrine, except where Congress has expressly provided to the contrary, a statute of limitations is tolled as long as a plaintiff, through no fault of his own, remains ignorant of his claim because of the defendants' having fraudulently concealed the underlying facts. *fn4" Plaintiffs contend, and I therefore assume, that the defendants fraudulently concealed their conspiracy, and that plaintiffs did not discover they had cognizable claims against defendants until ...


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