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January 17, 1991


The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:


Plaintiff, Esther Aronson brings this action for declaratory and injunctive relief against defendant New York City Employees Retirement System ("NYCERS"), claiming violations of her rights pursuant to 42 U.S.C. § 1983 and 1988 (1982), the Fourteenth Amendment of the United States Constitution, and Art. 5, § 7 of the New York State Constitution. She also seeks to be reinstated in NYCERS for each year that she has qualified for Workers' Compensation. NYCERS moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a cause of action on statute of limitations grounds. After NYCERS' motion was brought, I granted leave pursuant to Fed.R.Civ.P. 12(b) for the parties to conduct depositions in connection with this motion. Aronson does not dispute converting this motion to dismiss into one for summary judgment.*fn1 I therefore undertake sua sponte to convert this motion to dismiss pursuant to Fed.R.Civ.P. 56 because of the parties' reliance on matters outside the pleadings and because neither of the parties' rights would be impaired thereby.


Aronson was employed by New York City's Human Resource Administration ("HRA") as a social worker from 1965 to 1966 and later from August 1967 until June 1, 1983. Complaint ¶ 8. She became a member of NYCERS on the date of her initial employment by the City, October 5, 1965, and then again when she rejoined HRA's employ on August 17, 1967. Originally Aronson enrolled in a Career Pension Plan, known as the fractional plan, in which Aronson duly chose to be transferred to Plan A.*fn2

On February 23, 1981, Aronson allegedly suffered an allergic reaction resulting from exposure to tobacco smoke, fainted on her jobsite, and was removed for medical attention. She never returned to work. Complaint ¶¶ 10-12. She filed a claim for Workers' Compensation benefits, which was initially denied by the City but then granted on appeal in August of 1983. Benefits were awarded retroactive to February 23, 1981, the date of her fainting episode. She has continued receiving Workers' Compensation benefits from that date to the present.

While her Workers' Compensation claim was pending, and notwithstanding the bringing of that claim, the City commenced disciplinary charges against her alleging that she had been absent without first obtaining approved medical leave. On October 14, 1982, a hearing was held by the HRA on the recommendation that Aronson be dismissed. During the time of the hearing, she was accompanied by a union representative. After the hearing, the hearing officer recommended that Aronson be dismissed from service, effective June 1, 1983. Complaint ¶¶ 15, 17; Defendant's Memo in Support of Dismissal, p. 4. Since August 1983, Aronson has been and continues to receive Workers' Compensation benefits retroactive to February 23, 1981, the day that she fainted. Complaint ¶ 18.


On May 13, 1988, nearly five years after her dismissal from city-service, Aronson requested that NYCERS permit her to withdraw her election of Plan A and allow her to elect the 55-year Increased-Service Fraction or Plan B so that she could receive vested retirement benefits under § 13-173 of the New York City Administrative Code ("Administrative Code"). NYCERS refused to grant Aronson's request because § 13-173 requires that a member be in Plan B before discontinuing city-service.

Aronson contends that her inability to transfer to Plan B in May of 1988 constitutes a forfeiture of her pension rights without being afforded the benefit of a prior due process hearing. Complaint ¶¶ 1, 24, 25. Specifically, she avers that under the New York State Constitution, she has a property interest in her pension rights which is protected under the due process clause of the Fourteenth Amendment, and that NYCERS' automatic termination of her pension rights upon her termination from City services was a deprivation of property without procedural due process of law. She further maintains the time within which she was entitled to bring action for her injuries did not begin to accrue until May 13, 1988. NYCERS counters Aronson's substantive arguments with a statute of limitations defense, claiming that the clock began running on the date of her termination from city-service, June 1, 1983, and that the time within which she can commence suit has lapsed.

Because of Congress's failure to provide a specific statute of limitations to govern § 1983 actions, federal claims brought under 42 U.S.C. § 1983 are held to be governed by the state statute of limitations for personal injury actions in the state where the action is brought. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The applicable New York statute is the three-year statute of limitations governing general personal injury actions. See N.Y.Civ.Pract.L. & Rules § 214(5); Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Federal law, however, will determine the date upon which the statute will accrue. Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied sub nom. Nassau County Republican Committee v. Cullen, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). Under federal law, a claim accrues when the plaintiff "knew or had reason to know" of the injury which is the basis of her claim. Pauk v. Board of Trustees, 654 F.2d 856, 859 (2d Cir. 1981) (quoting Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981)).

While conceding that the appropriate statute of limitations for this action is three years, Aronson contends that the statute did not begin to run against her until May of 1988, which was when she first knew that she had been dropped from membership in NYCERS. Aronson contends that she could not possibly have known of her injury before May of 1988 because that was when she was first informed that her application to transfer from Plan A to Plan B was rejected.

NYCERS, on the other hand, insists that June 1, 1983, the date of Aronson's termination from city-service, is the date upon which the three year clock began to run, maintaining that Aronson knew or had reason to know of any potential impairment of her rights to elect certain retirement benefits upon her severance from city employ. I agree. Apparently, Aronson was aware that she was terminated from NYCERS coverage the first time that she left city employ on August 17, 1966 and that she was specifically reinstated upon rejoining HRA on August 17, 1967. Thus, she may be charged with knowing or she should have known that upon her discharge for unauthorized medical leave, it was likely that NYCERS coverage would not include an election to transfer plans after her termination from city-service.*fn3

That Aronson bases her claims on the belief that the inability to transfer from Plan A to Plan B resulted in a denial of property rights without due process of law is of no moment. I find that her inability to transfer plans is a result of her discontinuance from city service. Administrative Code § 13-173(a)(2). Any rights she might have had to elect to change retirement plans discontinued upon her severance from city-service.*fn4 Moreover, Aronson discontinued city-service on June 1, 1983, thus fixing this as the date she could have first maintained her action. Failure to commence an action within three years of her termination provides a defense to her claims at bar.

NYCERS further avers that it was also on June 1, 1983 that Aronson had reason to know of her injury. I agree. She was originally enrolled in a pension plan and therefore had access to all of the membership materials explaining the plans. Apparently, upon request, all plan members are given a booklet describing the plan in which they are enrolled. Kreisberg Affid., Exh. A. This booklet contains the restrictions on changing retirement plans at issue in this case. Because there is no affirmative duty for NYCERS administrative staff to inform members about the specifies of pension provisions beyond providing the booklet, the availability of this information to members charges Aronson with the information contained within the booklets. See United States v. Sams, 521 F.2d 421, 429 (3d Cir. 1975) (citing Japanese War Notes Claimants, 373 F.2d 356, 358-59, 178 Ct.Cl. 630 (toll exists where ...

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