Cir. 1980). Moreover, it is incongruous to deny Moscow the
chance to raise a viable defense when Day is afforded the
opportunity to amend his complaint, thus getting a second bite
at the apple. There was neither excessive delay on Moscow's
part in raising the defense, nor substantial prejudice suffered
by Day thereby. That Day may lose the motion does not
constitute prejudice. Indeed, had Day sought to bring analogous
claims of false arrest and unlawful search in a New York State
Court, the claims would have been time barred under the state's
lesser one year statute of limitations. See N.Y.Civ.Prac.L.R. §
215(3) (McKinney 1990).
Similarly, any contention that the complaint is not time
barred because Day is the victim of a purported comprehensive
conspiracy is frivolous and must be rejected out of hand. There
is nothing in the pleadings to suggest surreptitious or covert
actions by Moscow after Day's arrest that would justify tolling
the statute. The complaint wholly fails to plead adequate, non-
illusory allegations to make out a conspiracy claim. Indeed,
allegations of conspiracy are newly raised in the amended
complaint apparently in order to disguise that the case is
otherwise clearly time-barred. Under the circumstances,
allegations of conspiracy are inadequate to initiate a toll of
the statute of limitations sufficient to withstand motions to
dismiss. Likewise, any claims for false arrest and unlawful
search and seizure bootstrapped to the purported conspiracy
must fall as well.
Moreover, merely alleging a series of interlocking violative
events is not enough to constitute a conspiracy sufficient to
postpone accrual of claims. Singleton v. New York,
632 F.2d 185, 192 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct.
1368, 67 L.Ed.2d 347 (1981) ("crucial time for accrual purposes
is when the plaintiff becomes aware that he is suffering from a
wrong for which damages may be recovered in a civil action").
The operative date for accrual of Day's claims is December 12,
1985, the day that he was arrested. Day failed to file suit
within three years from that date. None of the post-arrest
events elevate Day's claims to a conspiracy. Although Day
alleges subsequent "interlocking" violative events, no viable
conspiracy can be gleaned therefrom.
Day, however, attempts to circumvent the rule, as delineated
in Singleton, by asserting the "continuing violation" doctrine.
This doctrine is usually employed in connection with employment
discrimination suits and functions to toll the time to file an
action "[w]here the defendant has engaged in a continuous
policy of discrimination." Association Against Discrimination
in Employment, Inc. v. Bridgeport, 647 F.2d 256, 274 (2d Cir.),
cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847
(1981). In order to show a continuing violation, plaintiff must
show "a series of related acts, one or more of which falls
within the limitations period." La Beach v. Nestle Co.,
658 F. Supp. 676, 687 (S.D.N.Y. 1987). Day has wholly failed to
allege facts sufficient to give rise to a reasonable inference
of a continuous "policy of discrimination."
Specifically, Day claims that the unlawful prosecution
against him squelched his first amendment rights, hindering him
from lawfully conversing with and helping a black prisoner. At
the outset, a case involving false arrest/unlawful search
charges does not present a situation where the continuing
violation doctrine appears applicable or appropriate. Even if
Day, as he avers, was unlawfully arrested and prosecuted,
thereby chilling his first amendment rights, this is
insufficient to warrant application of the doctrine. The
continuing violation doctrine may not be based on the
continuing effects of earlier unlawful conduct. Delaware State
College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d
431 (1980). As such, Day's use of this doctrine is no more than
a ploy to resurrect his time-barred claims. Furthermore, any
reliance on duress in order to affect a toll of the statute is
misplaced. Any purported duress experienced by Day did not
alter the limitations period here. See Cullen v. Margiotta,
811 F.2d 698, 722 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct.
3266, 97 L.Ed.2d 764 (1987) (only
where duress is "part" of the cause of action itself, or an
element thereof, does it have any possible tolling impact.)
Day next asserts that Moscow "is equitably estopped from
raising the defense of statute of limitations in virtue [sic]
of another tolling provision of New York State law."
Plaintiff's Memorandum at 37. Apparently, Day is suggesting
that New York's General Municipal Law constitutes a tolling
provision. It does not. Section 50-i is no more than a
condition precedent that must be met, regarding the filing of
a notice of claim before commencing an action against a
municipality. Rapf v. Suffolk County of New York, 755 F.2d 282,
288 (2d Cir. 1985) (discussing Gen.Munic.L. §§ 50- e and 50-i).
Finally, Day's amended complaint raises an additional two
claims pursuant to 42 U.S.C. § 1985(2), which were never
asserted in his first complaint. The first § 1985(2) claim
asserts that Moscow and Murray "both or either of them
conspired with others" to deter Day "by force, intimidation and
threat" from attending a federal proceeding and testifying in
The Law Firm of Daniel P. Foster, P.C. et al. v. John Does
1-200, et al., 84 Civ. 1337 (CES). Amended Complaint ¶¶ 9, 15.
The second § 1985(2) claim asserts that during the same time
period Moscow "conspired with others for the purpose of
impeding, hindering, obstructing or defeating the due course of
justice in the State of New York" as a result of being
"arrested and prosecuted because [Day] assisted a Black
prisoner with his equal right to counsel." Amended Complaint ¶
10; Plaintiff's Memorandum at 8.
Although the amended complaint fails to set forth with any
reasonable certainty facts showing what Moscow did to carry the
conspiracy into effect, Day apparently ties the purported
misconduct to his own criminal prosecution. Indeed, these
claims cannot fairly be viewed as a foreseeable outgrowth of
the original complaint. Additionally, Day concedes that the
prosecution ended on May 14, 1986. Thus, if Day was intimidated
as a result of that prosecution from testifying in federal
court, or from assisting a Black prisoner in a separate state
prosecution, any intimidation clearly ended after Day's
prosecution was dismissed on May 14, 1986. Accordingly, Day had
three years to amend the original complaint, incorporating his
§ 1985(2) claims. Since these claims were not part of the
original complaint, and raised for the first time on November
15, 1990 in the amended complaint, both § 1985(2) claims are
time barred under the applicable statute of limitations period.
Indeed, all claims asserted in the amended complaint apparently
arise from the same basic events, dating from the arrest and
search, thus all other claims, in addition to those appended to
the §§ 1983 and 1985(2) must fall as well.
For the foregoing reasons, motions to strike and dismiss
brought by defendants Murray and Moscow are granted in whole
and Day's amended complaint is dismissed in its entirety as
against all defendants. This decision closes this case and
hopefully will write "FINIS" to the entire matter.