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
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
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 claimant did not know
of an impairment of his rights and could not learn that he had
been injured by the government's allegedly wrongful conduct)
(emphasis supplied), cert. denied, 389 U.S. 971, 88 S.Ct. 466,
19 L.Ed.2d 461 (1967)).
Further, Aronson concedes to being a member of Plan A prior
to her discharge from employment. Deconinck Affid., Exh. 2, p.
12. She is thus charged with constructive knowledge of that
which was contained within the Plan description booklets. The
booklets stated that to be covered under Plan B or elect Plan
B it must be an election made during the time of employment.
Aronson was discharged previous to her making the election.
Therefore, no right was vested nor denied by NYCERS refusal to
allow a post-employment election to Plan B. NYCERS had no duty
to Aronson to conduct a hearing on matters concerning
retirement benefits after the time that she was discharged from
a city-service position.
Additionally, Aronson was represented by counsel from the
time of her allergic reaction throughout the disciplinary
hearings, eventual discharge from city-service, and during
Workers' Compensation hearings. Specifically, Aronson sought
legal help from her union with immediacy while pursuing her
Workers' Compensation claim and she was represented by her
union during the disciplinary hearing held by the HRA which
ultimately recommended her dismissal. Aronson also acknowledges
the fact that she was filing a lawsuit during the HRA's
disciplinary hearing. It is apparent from the record that under
the advice of counsel, Aronson chose not to pursue an appeal of
her dismissal or inquire at all about the effects of
termination upon her pension rights.
I find it unreasonable, however, that Aronson herself did not
inquire about the status her pension rights upon being
terminated. The very nature of pension rights are imbedded in
the duration of service an employee renders. When service is
ended by involuntary dismissal, a failure to inquire
as to the effects on pension rights seems unconscionable.
Instead, Aronson chose to pursue an appeal of her Workers'
Compensation claim as her sole remedy. It cannot be the duty of
this court to retain jurisdiction over an action concerning a
denial of due process rights which Aronson herself chose not to
Thus, under all of Aronson's theories, her cause of action
accrued on the day of her dismissal, June 1, 1983, since on
that day she first could have maintained a suit based on the
claim that NYCERS deprived her of a property right. There is no
claim that the union breached its duty to fairly represent her.
See King v. New York Tel. Co., 785 F.2d 31, 33-34 (2d Cir.
1986) (cause of action accrues when plaintiff could first
maintained suit unless union representing plaintiff acted
dishonestly and in breach of duty for fair representation).
Moreover, on that day, Aronson "knew or had reason to know"
that her pension rights were affected by her dismissal. Cullen
v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied sub
nom, Nassau County Republicans Committee v. Cullen,
483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). The requirement of
being in city-service in order to switch from Plan A to Plan B,
is codified in the Administrative Code and outlined in the
NYCERS informational booklet available to all NYCERS members
and as such Aronson is presumed to have knowledge of the above.
Finally, Aronson cannot claim that the three year statute of
limitation should be tolled. NYCERS did not "conceal its acts"
and the city-service requirement was not inherently unknowable.
See United States v. Sams, 521 F.2d 421, 429 (3d Cir. 1975)
(statute of limitations begins to run when wrongful conduct by
government ceases unless claimant does not know, and in
exercise of reasonable diligence cannot learn, that he has been
injured by the government's allegedly wrongful conduct.) On the
contrary, Aronson could readily have ascertained that her
dismissal affected her ability to switch from Plan A to Plan B
by simply requesting an informational booklet delineating plan
member rights. Instead, Aronson waited five years to write a
letter to NYCERS requesting permission to withdraw from Plan A
and to elect Plan B, and another year to institute action. This
is wholly unreasonable under the circumstances.
For the foregoing reasons, motion for summary judgment is
granted in favor of NYCERS. Aronson's claims are hereby
dismissed as time-barred and complaint is thus dismissed in its