only that as a matter of law section 50-i is inapplicable.
b) Second Affirmative Defense: Notice of Claim Requirement
New York General Municipal Law § 50-e requires that a notice
of claim be served within ninety days after the claim arises,
as a condition precedent to the commencement of a tort action
against a municipality. As a second affirmative defense,
Southampton asserts that Meiselman's failure to comply with
this requirement bars the action currently before this Court.
The decision of the United States Supreme Court in
Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123
(1988), is directly on point and dispositive of this issue as a
matter of law. The Supreme Court clearly stated that a
plaintiff bringing an action under section 1983 need not comply
with a state's notice of claim requirements (id. at p. 140, 108
S.Ct. at p. 2308). The Court concluded that such statutes are
preempted by and inconsistent with federal law (id. at p. 134,
108 S.Ct. at p. 2304). According to Justice Brennan, the
purpose of section 1983 is to afford a remedy to "persons
deprived of their federal civil rights by those wielding state
authority" (id. at p. 139, 108 S.Ct. at p. 2307). Thus,
application of "a state law that immunizes government conduct
otherwise subject to suit under § 1983" would thwart the
purpose of the remedy (id. at p. 139, 108 S.Ct. at 2307).
The Court further stated that a notice of claim, unlike a
statute of limitations, is not a necessary element of federal
litigation, "and there is thus no reason to suppose that
Congress intended federal courts to apply such rules, which
`significantly inhibit the ability to bring federal actions'"
(id. at p. 140, 108 S.Ct. at p. 2308, quoting Brown v. United
States, 742 F.2d 1498, 1507 [C.A.D.C. 1984]).
Like the Wisconsin statute at issue in Felder, the notice of
claim requirement in section 50-e serves the purpose of
affording municipal "defendants an opportunity to prepare a
stronger case" (id. at p. 145, 108 S.Ct. at p. 2310; see also
Beary v. City of Rye, 44 N.Y.2d 398, 412, 377 N.E.2d 453, 458,
406 N.Y.S.2d 9, 13  ["`[t]he only legitimate purpose
served by the notice' is prompt investigation and preservation
of evidence"] [citations omitted]).
Therefore, as a matter of law, "compliance with the notice
of claim requirements of General Municipal Law § 50-e is not
necessary to recover for alleged violations of a party's civil
rights under 42 U.S.C. § 1983" (Rattner v. Planning Comm'n of
Pleasantville, 156 A.D.2d 521, 525, 548 N.Y.S.2d 943, 947 [2d
Dep't 1989], citing Felder v. Casey, supra).
Accordingly, since section 50-e is inapplicable as a matter
of law, the defendant Town of Southampton's second
affirmative defense is stricken as insufficient.
c) Fourth Affirmative Defense: Statute of Limitations
In omitting an express statute of limitations governing
section 1983 claims, Congressional silence did not provide
plaintiffs an unlimited time within which to commence such
actions (Felder v. Casey, supra, 487 U.S. at p. 141, 108 S.Ct.
at p. 2308). Rather, the courts must look to an appropriate
state statute to govern such actions (id. at p. 139, 108 S.Ct.
at p. 2307, citing 42 U.S.C. § 1988).
According to the borrowing provision of the civil rights
statute, 42 U.S.C. § 1988, the district court is to first look
for a federal rule which is applicable to the issue in
question. Absent such a rule, the court must apply the law of
the state in which it sits, "so far as [it] is not inconsistent
with the Constitution and laws of the United States" (42 U.S.C. § 1988).
The purpose, of course, is "to assure that neutral
rules of decision will be available to enforce the civil rights
actions, among them § 1983" (Wilson v. Garcia, 471 U.S. 261,
269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 ).
In Wilson v. Garcia, supra, the Supreme Court determined that
choosing "a simple, broad characterization of all § 1983
claims" better suited the purpose of the statute, rather than
choosing the most analogous
state statute for a particular claim (id. at p. 272, 105 S.Ct.
at p. 1944).
"If the choice of the statute of limitations were
to depend upon the particular facts or the
precise legal theory of each claim, . . .
different statutes of limitations would be
applied to the various § 1983 claims arising in the
same State, and multiple periods of limitations
would often apply to the same case."
(Wilson v. Garcia, supra, 471 U.S. at pp. 273-74, 105 S.Ct. at
The Court concluded that in light of "the federal interests
in uniformity [and] certainty," section 1983 was meant to be
given a broad and simple interpretation (id. at p. 275, 105
S.Ct. at p. 1946) and the courts were directed "to select in
each State, the one most appropriate statute of limitations for
all § 1983 claims" (id. at p. 275, 105 S.Ct. at p. 1946).
After reviewing the characterization of the section 1983
claims and the strong federal interest in preserving a
federal civil rights remedy, the Court in Wilson determined
that the most appropriate statute of limitations to apply in
that case was New Mexico's three-year statute for general
personal injury, since it is understood that section 1983 was
originally intended to provide "a general remedy for injuries
to personal rights" (id. at p. 278, 105 S.Ct. at p. 1948).
The statute of limitations issue was further refined in the
more recent decision of Owens v. Okure, 488 U.S. 235, 109 S.Ct.
573, 102 L.Ed.2d 594 (1989). Going one step beyond Wilson v.
Garcia, the Court in Owens determined that where two or more
statutes of limitations exist within a state for certain
enumerated torts, as in New York, the appropriate statute to
apply is the residual or general personal injury statute. The
Court concluded that New York's three-year personal injury
statute, CPLR 214(5), was better suited to govern section 1983
actions than the one-year statute of limitations for certain
intentional torts specified by CPLR 214(3). In so holding, the
Court indicated that it was fulfilling the goals set forth in
Wilson to "end this `conflict, confusion and uncertainty'"
(Owens v. Okure, 109 S.Ct. at p. 576, quoting Wilson v. Garcia,
471 U.S. at p. 266, 105 S.Ct. at p. 1941), by applying "the one
most analogous state statute of limitations" to all section
1983 claims (id. 109 S.Ct. at p. 576). As in Wilson, the Court
rejected determining the statute of limitations based on the
type or theory of action before the court, and its similarity
to a particular state claim. The court reasoned that many
claims brought under section 1983 do not even have analogous
state claims and that such a policy "would be inconsistent with
§ 1983's broad scope" (Owens v. Okure, 109 S.Ct. at pp.
Although the Supreme Court has addressed the statute of
limitations issue in section 1983 litigation, the precise
issue presented at this time has apparently not yet been
considered, namely, whether the one-year and ninety day
statute of limitations set forth in General Municipal Law
§ 50-i for personal injury actions against municipalities is
applicable to section 1983 actions.
In a case similar to this, decided in the wake of
Wilson v. Garcia, but before Owens v. Okure, it was held that
the limitations period contained in section 50-i was
inapplicable to a section 1983 claim (see Burroughs v. Holiday
Inn, 621 F. Supp. 351, 352 [W.D.N.Y. 1985]). The district court
in Burroughs v. Holiday Inn held that since "the Court [in
Wilson v. Garcia] chose to analogize § 1983 to what it
described as `general personal injury actions,'" it would be
inappropriate to apply a statute of limitations applicable
solely to municipal defendants (id. at p. 353). Although
General Municipal Law § 50-i was enacted as a means of
"clarifying and unifying the law with respect to claims against
municipal corporations" (Governor's Memorandum on Approval of
ch. 788, N.Y. Laws [Apr. 23, 1959], reprinted in  N Y
Laws 1773 [McKinney]), this is inconsistent with the Supreme
Court's interpretation of section 1983, which is intended to
provide a uniform federal remedy for plaintiffs, not for the
The defendant City of Rochester in Burroughs argued that the
Wilson decision emphasized a need for "uniformity and
certainty" and therefore section 50-i should
apply "since all lawsuits against public corporations would
then be subject to the same procedural requirements
regardless of whether they were state tort actions or federal
civil rights claims" (Burroughs v. Holiday Inn, 621 F. Supp. at
p. 353 n. 3). However, as the Court in Burroughs noted, the
city's argument misconstrued the holding of Wilson. Instead,
the court noted that Wilson stressed the need to create
uniformity within each state with respect to all section 1983
actions, even if this meant that public defendants would be
subject to a different limitations period for section 1983
actions than for analogous state actions (see Burroughs v.
Holiday Inn, 621 F. Supp. at p. 353 n. 3, citing Wilson v.
Garcia, 471 U.S. 261 at p. 275, 105 S.Ct. at p. 1946).
In view of the Supreme Court's pronouncements on the
applicable statute of limitations, as well as the persuasive
reasoning in Burroughs v. Holiday Inn, supra, this Court holds
that the one-year and ninety day statute of limitations period
in General Municipal Law § 50-i, is inapplicable to actions
brought under 42 U.S.C. § 1983. In this Court's view, the
appropriate statute of limitations in such actions is three
years, pursuant to CPLR section 214(5), New York's general
personal injury statute. This approach is in accord with the
underlying rationale stated by the Supreme Court in the Wilson
and Okure cases, and avoids subjecting plaintiffs to differing
limitations periods depending on the identity of the defendant.
Accordingly, the plaintiff's motion to strike the defendant
Town of Southampton's fourth affirmative defense as
insufficient as a matter of law is granted.
For the reasons stated above the motion of plaintiff
Annette D. Meiselman to strike the second and fourth
affirmative defenses interposed in the answer of the
defendant Town of Southampton is granted.
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