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SZAREJKO v. GREAT NECK SCH. DIST.

July 23, 1992

CHESTER SZAREJKO, Plaintiff, against GREAT NECK SCHOOL DISTRICT, GREAT NECK BOARD OF EDUCTION and GIL BLUM, Defendants.


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 Plaintiff in the above-captioned action seeks redress under 42 U.S.C. §§ 1983 and 2000e ("Title VII") for, respectively, deprivations of the rights secured to him by federal law and the Constitution, and employment discrimination. The complaint in the instant action contains two claims for relief: one under section 1983, and one under Title VII. Defendants move to dismiss both claims pursuant to Federal Rule of Civil Procedure 12(b) on the following grounds: (1) plaintiff's 1983 action is barred by the applicable statute of limitations; (2) service of process was insufficient; and (3) plaintiff has failed to prosecute this action pursuant to Federal Rule of Civil Procedure 41(b).

 For the reasons stated below, the Court dismisses plaintiff's section 1983 claim as to all defendants on the ground that it is barred by the applicable statute of limitations. The Court further dismisses plaintiff's Title VII claim as to defendants Great Neck School District (the "District") and Great Neck Board of Education (the "Board") on the ground that service of process was insufficient as to these defendants and not perfected within the 120 day time limitation set forth in Rule 4(j). However, the Court declines to dismiss plaintiff's Title VII claim as against defendant Gil Blum ("Blum").

 BACKGROUND

 From 1980 to 1988, plaintiff was employed as a Social Studies teacher at South High School in Great Neck. In May of 1988, he received notice of a reassignment which allegedly resulted from a need to reduce the Social Studies staff at South High School. The complaint in this action arises out of that reassignment, which plaintiff claims was motivated by discrimination and in violation of his civil rights.

 According to defendants, plaintiff was notified of the reassignment in May 1988 and again on September 1, 1988. On September 4, 1991, he filed the complaint in the above action. On September 11, 1991, he mailed a summons and complaint to each defendant by certified mail in an apparent attempt to serve them pursuant to Fed. R. Civ. P. 4(c)(2)(C)(ii). The certified mail receipts reflect that plaintiff sent the summons and complaint to Blum's residence and to the Board's district office. Defendants did not return their acknowledgement forms. In their answer, defendants assert the affirmative defenses of insufficiency of service of process and statute of limitations. Plaintiff has made no attempt to cure service.

 DISCUSSION

 A. Statute of Limitations

 Defendants assert that plaintiff's claim under section 1983 is barred by the applicable statute of limitations. When there is no specifically stated or otherwise relevant federal statute of limitations for a federal claim, the controlling statute of limitations is the most appropriate one provided by state law. Bd. of Regents v. Tomanio, 446 U.S. 478, 485, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Pauk v. Bd. of Trustees, 654 F.2d 856, 861 (2d Cir. 1981). The Second Circuit has held that the appropriate statute of limitations for 1983 actions brought in New York is N.Y. Civ. Prac. L. & R. § 214(5) (McKinney Supp. 1986). See Okure v. Owens, 816 F.2d 45, 47 (2d Cir. 1987); Greenwood v. State of New York Office of Mental Health, 645 F. Supp. 111, 114 (S.D.N.Y. 1986), modified on different grounds, 842 F.2d 636 (2d Cir. 1988). Section 214(5) provides for a three year statute of limitations in personal injury actions. The accrual date of a section 1983 action under section 214(5) is the date on which the discriminatory act occurs, or, more specifically, the date on which the employee is notified of a final determination of his status. Chardon v. Fernandez, 454 U.S. 6, 8, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981).

 In the case at bar, defendants have submitted proof that plaintiff received notification of his reassignment on May 31, 1988. In his complaint, plaintiff identifies the date of his reassignment as "in or around August, 1988." Complaint P 16. For purposes of this discussion, the Court will assume that August of 1988 was the date of notification, since the difference between May and August has no bearing on the Court's disposition. These dates indicate that the statute of limitations would have expired in August of 1991, prior to plaintiff having commenced the instant action. Thus, in order to establish the timeliness of this action, the court need only determine whether the statute of limitations was tolled during this period.

 Plaintiff claims that when he filed a complaint with the N.Y.S. Division of Human Rights (the "DHR"), the statute of limitations was tolled. However, the law is clear that the pursuit of Title VII administrative remedies does not toll the statute of limitations on other Civil Rights Act claims. Weise v. Syracuse University, 522 F.2d 397, 408 n.15 (2d Cir. 1975) (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 455, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975)). Moreover, in section 1983 actions in New York "'federal courts [are] obligated . . . to apply the New York rule for tolling [the] statute of limitations.'" Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990) (citation omitted). New York only provides for tolling in limited circumstances, *fn1" and the filing of a complaint with the DHR is not among them. *fn2" Accordingly, the Court concludes that plaintiff's claim under 42 U.S.C. § 1983 is time barred, and dismisses this claim as to the District, the Board and Blum.

 B. Sufficiency of Service of Process


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