Court that was based on the same transaction or occurrence as the present action -- the allegedly unconstitutional default -- clearly terminated in 1987 when the Second Circuit finally disposed of Plaintiff's attempt to collaterally attack the default. At that time, the remaining claims before the Bankruptcy court were not based on the same transaction or occurrence as the present § 1983 claim.
Thus, the question is whether a party may file a new lawsuit with the benefit of the tolling statute in an action when that part of the action based on the same transaction or occurrence as the new lawsuit ended long ago. Such a result would be inconsistent with the underlying purpose of § 205(a): to avoid the harsh effects of the statute of limitations where a party is actually litigating a timely claim which is dismissed for technical reasons that could be avoided in a new lawsuit. See Graziano v. Pennell, 371 F.2d 761, 763 (2d Cir. 1967). In applying the statute, New York courts have been concerned not with "the technicalities of the form of relief requested," but with the subject matter of the dispute. Harris v. United States Liability Ins. Co., 746 F.2d 152, 154 (2d Cir. 1984). The fact that the Bankruptcy action as a whole did not technically terminate until July of 1991 does not entitle Plaintiff to file her lawsuit within six months of July, 1991, where that part of the action which triggered the application of the tolling statute in the first place ended in 1987. Plaintiff's Section 1983 claim, filed in October of 1991, is therefore dismissed under the statute of limitations.
2. Plaintiff's State Law Claims
Plaintiff's cause of action under § 853 of the New York Real Property Actions and Proceedings Law has a statute of limitations of at least one year and at the most three years. See Kolomensky v. Wiener, 135 A.D.2d 505, 522 N.Y.S.2d 156 (2d Dept. 1987), app. denied in part and dism'd in part, 72 N.Y.2d 873, 532 N.Y.S.2d 365, 528 N.E.2d 517 (1988). This claim is not timely and is not saved by the tolling statute, § 205(a), for the reasons discussed above. The remaining four state law claims that Plaintiff argues are in the complaint would be timely. The first alleged state law claim, to recover the Sparrowbush leasehold, has a statute of limitations of ten years. C.P.L.R. § 212(a). The second and third alleged state law claims, to recover damages for the period during which Plaintiff was deprived of possession of the leasehold, and to recover damages for the reasonable value of the leasehold at the time it was terminated, are governed by the six year statute of limitations applicable to breach of contract actions. C.P.L.R. § 213. The fourth alleged state law claim, to recover in quasi-contract for CIT's payment of the $ 735,715.00 to Defendants for repairs to Sparrowbush which Defendants allegedly failed to make, does not have a specified statute of limitations. Since the legislature did not prescribe a statute of limitations for quasi-contract actions, the limitations period for this claim would be six years. C.P.L.R. § 213(1). These four state law claims would be timely without the benefit of the tolling statute.
Defendant's motion to dismiss Plaintiff's causes of action under 42 U.S.C. § 1983 and § 853 of the New York Real Property Actions and Proceedings Law is granted. Plaintiff has alleged diversity jurisdiction under 28 U.S.C. § 1332(a). Plaintiff is granted leave to amend the complaint under F.R.C.P. 15(a) to plead any remaining claims upon which relief may be granted under state law.
Dated: March 23, 1992
New York, New York
Constance Baker Motley, U.S.D.J.