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February 25, 1982

Frankie Mai FLORENCE; Wilbert C. Grant; Carl Lorenzo Herrington; Curtis Lavon Herrington; Senita Scott; and Chiquita Herrington, an Infant, By Her Mother Senita Scott, Plaintiffs,
Troopers Henry KRASUCKI, Orlando Gonzales, Robert Yorio, and Thomas Law, and Investigator M. G. Moore, Individually and in their Capacities as Officers of the New York State Police; Frank Freer; and Freer Fruit Farms, Inc., Defendants

The opinion of the court was delivered by: CURTIN

Currently before the court in this action are defendants' motion to dismiss the complaint as time-barred and the plaintiffs' motion to strike the defendants' fifth affirmative defense. These motions are based upon defendants' contention that the applicable statute of limitations for plaintiffs' complaint is the one-year provision for intentional torts of New York C.P.L.R. § 215.

Many of the facts are not disputed, and I will briefly set them forth. Plaintiffs are migrant farm workers and the infant child of one of the workers. Defendants are plaintiffs' employer, Freer Fruit Farms, Inc. (the Farm), Frank Freer, and five New York State Police Officers. The migrant workers entered into a contract with defendant Freer, acting as agent for Freer Fruit Farms, pursuant to which they were employed to pick apples at the Farm. As partial consideration for their work, the plaintiffs were to receive housing on the premises of the Farm on property owned by Mr. Freer and leased by him to the corporate defendant. Plaintiffs allege that on or about October 17 or 18, 1978, their employment was abruptly terminated by defendant Freer, and they were ordered to vacate their living quarters immediately.

The gravamen of plaintiffs' complaint is that although they were preparing to vacate the migrant workers' living quarters, they were nevertheless forcibly and unlawfully evicted from the premises by defendant Freer with the assistance of the State defendants. It is plaintiffs' contention that the defendants conspired to deprive them of equal protection of the law and did so deprive them by evicting them without regard to the procedural safeguards of the New York Real Property and Procedure Law (RPAPL). Plaintiffs base their cause of action upon 42 U.S.C. §§ 1983 and 1985(3) and allege as well various pendent state claims under RPAPL §§ 701 et seq., 853, and New York conspiracy law. Jurisdiction for these pendent claims is based upon both the pendent jurisdiction doctrine and upon 28 U.S.C. § 1332, since diversity of citizenship exists among the parties.

 Defendants have moved to dismiss all claims on the basis that they are barred by the one-year provision of C.P.L.R. § 215, which defendants contend is the applicable New York statute of limitations for civil rights actions. Defendants rely upon the cases of Chapman v. Johnson, 39 A.D.2d 629, 331 N.Y.S.2d 184 (4th Dept. 1972), and Staffen v. City of Rochester, 80 A.D.2d 16, 437 N.Y.S.2d 821 (4th Dept. 1981), to support their contention that the three-year statute of limitations of C.P.L.R. § 214(2) should not be applied because section 1983 does not create a claim but only provides a remedy to enforce federal civil rights.

 In May of 1981, when the plaintiffs' motion to strike the statute of limitations defense was filed, the law in this circuit was unsettled regarding the applicable statute of limitations. The United States Court of Appeals for the Second Circuit had indicated in a number of cases that the appropriate statute was New York C.P.L.R. § 214(2), the three-year provision to recover upon a liability created or imposed by statute, but had not finally resolved the issue. See Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied 450 U.S. 920, 101 S. Ct. 1368, 67 L. Ed. 2d 347 (1981); Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980).

 The issue was finally laid to rest in July of 1981 when the court issued its decision in Pauk v. Board of Trustees of City University of N.Y., 654 F.2d 856 (2d Cir. 1981). In Pauk, the United States Court of Appeals for the Second Circuit discussed the impact of Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979), also relied upon by defendants, and firmly established section 214(2) as the limitations period applicable to section 1983 actions.

 Despite this clear authority, the defendants nevertheless maintain that section 214(2) should not be applied to the plaintiffs' claims herein because plaintiffs have not properly stated a cause of action under section 1983.

 In support of this argument, defendants Freer and Freer Fruit Farms rely upon the case of Engblom v. Carey, 522 F. Supp. 57 (S.D.N.Y. 1981). In Engblom, the plaintiffs' claims were based upon section 1983 and upon the Third Amendment to the United States Constitution.

 The Engblom plaintiffs were correctional officers at Mid-Orange Correctional Facility in the State of New York and resided in housing made available to employees of the facility. Plaintiffs participated in a statewide labor strike by corrections officers during April of 1979. Their complaint arose out of the actions of the Governor of the State of New York and the National Guard in occupying plaintiffs' rooms during the strike. Plaintiffs claimed that these actions deprived them of property without due process of law and violated the provisions of the Third Amendment of the Constitution. *fn1" In dismissing the Third Amendment and section 1983 claims, the court held that the plaintiffs did not demonstrate the requisite "property or possessory interest" in the premises. Honorable Robert W. Sweet characterized the plaintiffs' occupancy of the dormitory-like residences as analogous to a possession incident to employment "which carries with it a somewhat lesser bundle of rights than does a tenancy." Id. at 67, citing Dobson Factors, Inc. v. Dattory, 80 Misc.2d 1054, 364 N.Y.S.2d 723 (N.Y.Co.Civ.Ct.1975); Hartman v. Sykes, 66 Misc.2d 764, 322 N.Y.S.2d 158 (N.Y.Co.Civ.Ct. 1970); 1 J. Rasch, New York Landlord & Tenant, §§ 68, 69 at 91-94 (2d ed. 1971).

 As in the instant case, the plaintiffs in Engblom argued that the defendants' failure to follow the procedures for summary eviction of the RPAPL is itself sufficient to give rise to a cause of action under section 1983.

 RPAPL § 713 provides:

A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:
11. The person in possession entered into possession as an incident to employment by petitioner, and the time agreed upon for such possession has expired or, if no such time was agreed upon, the employment has been terminated; no notice to quit shall be required in order to maintain the proceeding under this subdivision.

 Thus, as Judge Sweet recognized, the tenant occupying premises as an incident to his or her employment is not devoid of procedural rights upon termination of the employment. Under the RPAPL, the owner-employer is required to follow the procedures for summary eviction outlined in the statute. The court in Engblom nevertheless held that these rights were "largely procedural, violation of which is not encompassed by the Due Process Clause of the Fourteenth Amendment," and further held that the injuries sustained by the plaintiffs due to the ...

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