The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
Several pending motions now await the court's decision. Defendants move to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and, in the alternative, for summary judgment under Rule 56. Plaintiff opposes these motions and cross-moves for partial summary judgment on her second cause of action to recover the leasehold under New York law.
This case was last before the court on defendants' motion to dismiss for failure to state a claim on which relief may be granted. In the court's opinion of March 23, 1992, familiarity with which is presumed, the court dismissed plaintiff's claims under 42 U.S.C. § 1983 and § 853 of the New York Real Property Actions and Proceedings Law (RPAPL) as barred by the statute of limitations. Also in this opinion, and by the court's order of the same date, the court granted plaintiff leave to amend the complaint to more specifically plead any state law claims, plaintiff having alleged diversity jurisdiction in the original complaint. Plaintiff subsequently filed an amended complaint separately pleading her state law claims and repleading the § 1983 and RPAPL § 853 claims that were dismissed by the court's prior opinion. Plaintiff also submitted a letter to the court dated March 27, 1992, explaining her position that her repleading of the § 1983 and RPAPL § 853 claims was proper because the amended complaint includes a new allegation that, if true, would toll the statute of limitations and render these claims timely.
Although the court will not now set forth the extensive factual background leading up to the present litigation, a brief review of the facts is necessary to clarify the issues raised in the motions presently before the court.
Defendant Latham Sparrowbush Associates ("LSA") is a limited partnership which owns a garden apartment complex known as Sparrowbush Apartments ("Sparrowbush"). Defendant Aaron Kozak is a general partner of LSA. On August 28, 1968, LSA leased Sparrowbush to Shaker Estates, Inc. ("Shaker"), not a party to this litigation, under a long term blanket lease for twenty-one years and three days with an option to extend the lease for two successive twenty-one year terms. On December 31, 1973, Cohoes Industrial Terminal ("CIT"), a New York corporation, purchased Shaker's interest in the leasehold. Plaintiff's husband, Leon Baker, co-counsel to plaintiff in this litigation, is the president and sole shareholder of CIT. Plaintiff claims that CIT entered into the leasehold agreement as her nominee, and that she was the equitable owner of the leasehold, although defendants dispute this contention. Section 32.01 of the Sparrowbush lease granted LSA the option to terminate the lease at any time on sixty days notice and pay the tenant $ 350,000. On December 26, 1984, LSA notified CIT that it was exercising its option to terminate the lease. The next day, Leon Baker informed LSA of his opinion that the option in Section 32.01 of the lease was invalid under New York's Rule against Perpetuities.
The present litigation is the fourth in a series of court actions to determine the lessee's rights to the Sparrowbush leasehold. Plaintiff first brought suit in January of 1985 in Westchester Supreme Court to obtain a judgment declaring that Section 32.01 of the lease violates New York's Rule against Perpetuities (the "Westchester action"). The court dismissed plaintiff's complaint for lack of standing by order dated April 16, 1985, and this decision was affirmed on appeal. Baker v. Latham Sparrowbush Assocs., 129 A.D.2d 667, 514 N.Y.S.2d 426 (2d Dep't 1987), appeal denied, 70 N.Y.2d 606, 519 N.Y.S.2d 1030, 514 N.E.2d 388 (1987).
On February 11, 1985, LSA commenced an action against CIT in the Supreme Court of the State of New York, Albany County, for specific performance of the termination clause in Section 32.01 of the lease (the "Albany action"). LSA served process on CIT by providing service on the Secretary of State pursuant to § 306 of the Business Corporation Law (BCL). CIT did not receive process from the Secretary of State because CIT's current address was not on file with the Secretary of State at the time. CIT did receive actual notice of the action in time to defend by a copy of the summons and complaint which LSA attached to papers served on plaintiff in the Westchester action. CIT defaulted in the Albany action and Supreme Court Justice Kahn entered an order dated April 19, 1985 granting LSA's motion for a default judgment and directing CIT to deliver possession of Sparrowbush to LSA. Justice Kahn denied CIT's motion to vacate the default on May 21, 1985, and that order was affirmed in Latham Sparrowbush Assocs. v. Cohoes Indus. Term., Inc., 114 A.D.2d 584, 494 N.Y.S.2d 195 (3d Dep't 1985), appeal dism'd, 67 N.Y. 2d 736, 500 N.Y.S.2d 100, 490 N.E.2d 1226 (1986).
A third related action was commenced on April 28, 1986, in United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy action"). CIT filed a Chapter 11 petition to collaterally attack the default judgment in the Albany action. LSA moved pursuant to 11 U.S.C. § 326(d)(1) to lift the automatic stay to enable it to obtain possession of Sparrowbush. CIT cross-moved to have LSA and the receiver held in contempt of court for attempting to enforce the state court judgment in violation of the automatic stay, and for an order directing CIT to transfer legal title of the leasehold to Gloria Baker. Judge Schwartzberg granted LSA's motion and denied both of CIT's cross-motions. In re Cohoes Indus. Term., Inc., 62 Bankr. 369 (Bankr. S.D.N.Y. 1986). The bankruptcy court's decision was affirmed by the district court in the Southern District of New York in In re Cohoes Indus. Term., Inc., 70 Bankr. 214 (S.D.N.Y. 1987), which was affirmed by the Second Circuit in a unpublished summary order. In re Cohoes Indus. Term., Inc., Docket No. 87-5004(R) (2d Cir. September 18, 1987).
II. Defendant's Motion to Dismiss the Complaint
Defendants move to dismiss the complaint for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction.
A. Plaintiff's § 1983 and RPAPL § 853 claims
Defendants first challenge plaintiff's attempt to replead her § 1983 and RPAPL § 853 claims as a transparent effort to avoid the court's prior decision dismissing these claims under the statute of limitations. Plaintiff responds that Rule 15(a) permits a party to amend the complaint without leave of court before the opposing party has filed a responsive pleading. Because a motion to dismiss the complaint is not a responsive pleading under F.R.C.P. 7(a), plaintiff contends that she could amend her § 1983 and RPAPL § 853 claims as of right notwithstanding the court's decision dismissing these claims.
The court finds plaintiff's position untenable. Rule 15(a) does not permit a party to file an amended complaint as of right after the court dismisses the complaint with prejudice on a Rule 12(b)(6) motion. See Swan v. Board of Higher Educ., 319 F.2d 56, 60-61 (2d Cir. 1963); Salwen Paper Co., Profit Sharing Retirement Trust v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 79 F.R.D. 130, 133 (S.D.N.Y. 1978); Christophides v. Porco, 289 F. Supp. 403, 408 (S.D.N.Y. 1968); 3 Moore's Federal Practice, P 15.07 at 15-36 (2d ed. 1987) ("While Rule 15(a) literally gives the plaintiff an unlimited right to amend once as of course before a responsive pleading has been served, if the court has dismissed the complaint (on a Rule 12(b) motion, for example) before an answer has been served, the plaintiff may file an amended complaint only upon leave of court."). This court's order of March 23, 1992 specifically granted plaintiff leave to replead only her state law claims that were not specifically pled in the original complaint. Plaintiff did not obtain or request leave to amend the complaint with respect to the dismissed claims.
Plaintiff's repleading of these claims in the amended complaint was therefore improper.
However, notwithstanding plaintiff's failure to raise the issue in compliance with procedural requirements, the court will nevertheless address the issue to put an end to the matter. The modified allegations in the amended complaint assert that plaintiff was unable to bring her § 1983 and RPAPL § 853 claims against defendants until the conclusion of the bankruptcy action. Plaintiff argues that the statute of limitations was tolled until 1991, when the entire bankruptcy proceeding terminated, and not merely, as the court ruled, until 1987 when that part of the bankruptcy action challenging the default judgment was conclusively determined and upheld on appeal. Plaintiff's new argument is that because the New York courts had ruled that plaintiff lacked standing to bring a declaratory judgment action to invalidate Section 32 of the lease, and because the bankruptcy court refused to permit CIT to assign its interest in the leasehold to plaintiff, which would have given plaintiff standing to assert her rights, plaintiff was therefore stayed from bringing the present action under CPLR § 204(a) until the date that she was finally able to obtain an assignment from CIT.
Plaintiff filed an action in the Supreme Court of Westchester County in early 1985, seeking a judgment declaring Section 32.01 of the lease invalid. By order dated June 20, 1985, the court granted the landlord's cross-motion to dismiss the complaint on the ground that plaintiff lacked standing to sue. This order was affirmed in Baker v. Latham Sparrowbush Assocs., 129 A.D.2d 667, 514 N.Y.S.2d 426 (2d Dep't 1987). As the Second Department noted, Gloria Baker was not a party to the lease, and her allegation that CIT was merely her "nominee" was "unsubstantiated by any documentary proof or other written evidence in the record". Baker, 514 N.Y.S.2d at 427. The court further noted that in order for an agent to exercise its authority to perform or execute a contract to lease property for more than a year, the agent must have written authorization from the principal. Id. The court concluded that plaintiff had no standing to question the validity of a lease to which she is not a party.
CIT subsequently filed a petition in bankruptcy court in which it attempted to collaterally attack the default judgment obtained by LSA in the Albany action. At the same time, Gloria Baker moved for an order directing CIT to transfer its interest in the leasehold to her on the ground that she is the equitable owner of the lease and CIT is her mere nominee. The bankruptcy court denied this motion on the grounds that CIT had no title to transfer because a final state court order had already terminated its rights in the leasehold, and because such transfer would not be in the best interests of the estate since the lease termination payment would then accrue to Gloria Baker instead of CIT. In re Cohoes Indus. Terminal, 62 Bankr. 369, 378-80 (Bankr. S.D.N.Y. 1986), aff'd, 70 Bankr. 214 (S.D.N.Y. 1987), affirmed, Docket No. 87-5004(R) (2d Cir. September 18, 1987).
CPLR § 204(a) has been interpreted to apply to situations covered by the "spirit" of the rule even though not governed by the letter of statute. Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359, 366 (2d Dep't 1989). Accordingly, courts have construed § 204(a) to toll the statute of limitations during the period of time in which a plaintiff is disabled from bringing suit because of a statutory requirement that the plaintiff first obtain leave of court before filing suit. See, e.g., Barchet v. New York City Transit Authority, 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361 (1967) (statute of limitations tolled from the time plaintiff commenced proceeding to obtain leave of court to file a late notice of claim until the date when the court granted leave of court); Wilson v. Motor Vehicles Accident Indemnification Corp., 44 Misc.2d 187, 253 N.Y.S.2d 265 (Sup. Ct. Spec. Term, Bronx Cty. Pt. 1 1964) (time during which court held in abeyance plaintiff's motion for leave to sue the corporation excluded from the limitations period). The tolling principal embodied in § 204(a) has also been applied to exclude from the limitations period the time during which a valid cause of action had accrued but was temporarily extinguished as a result of an erroneous court order which was later reversed. Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359 (2d Dep't 1989).
Plaintiff's purported disability, however, is of a very different nature than those relied on to obtain the benefit of § 204(a) in the above cases. Plaintiff's alleged lack of standing without an assignment from CIT is not a disability resulting from a condition precedent to filing suit imposed by statute, nor is it a situation where plaintiff had a valid cause of action which was temporarily extinguished by an erroneous court ruling. Rather, if in fact, plaintiff lacked standing to file her § 1983 and RPAPL § 853 claims without an assignment from CIT then it was because she lacked a sufficient nexus to the subject matter of the litigation, not because of any court-imposed restraint or statutory pre-requisite.
A similar argument for applying § 204(a) was rejected in Leigh v. McGuire, 507 F. Supp. 458 (S.D.N.Y. 1981) on more compelling facts than those present here. In Leigh, plaintiffs bringing a Section 1983 action opposed defendants' statute of limitations defense on the ground that they could not have successfully maintained their action within the prescribed time period because a criminal proceeding involving the same issue was pending in state court, and a federal court would have abstained from hearing the action under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The plaintiffs in Leigh argued that the fact that the court would have abstained from their § 1983 action, although not technically a stay, should trigger the tolling principal of CPLR § 204(a). The court rejected this argument, holding that § 204(a) does not extend to situations where plaintiffs could not successfully maintain a cause of action because of a judicial doctrine such as abstention. Leigh, 507 F. Supp. at 460-61. The facts alleged by plaintiff in this case to invoke § 204(a) are much weaker than those present in Leigh. Unlike the situation in Leigh, plaintiff's alleged "disability" did not result from a judicial doctrine which would have prevented the court from hearing her claim due to the pendency of a related court proceeding. Assuming that plaintiff is correct in her argument that she would not have had standing to bring her § 1983 and RPAPL § 853 claims without the assignment from CIT, then she would have failed in her litigation for the sole reason that she was unable to convince a court that she had a sufficient relationship to the subject matter of the action she sought to bring. The fact that plaintiff, like any other litigant, would have had to demonstrate standing to succeed on her claim, and the fact that she may have encountered difficulties doing so given her attenuated relationship to the subject matter of the litigation, does not render her effectively "stayed" from bringing such a claim under § 204(a). Cf. Ticon Corp. v. Emerson Radio & Phonograph Corp., 206 Misc. 727, 134 N.Y.S.2d 716 (Sup. Ct. Spec. Term. N.Y. Cty. Pt. I 1954) (fact that secret proof would be unavailable in action for breach of contract classified as confidential by the U.S. Army would not toll the statute of limitations under the CPLR).
Moreover, if, as plaintiff claims, she did not have standing to bring a § 1983 or RPAPL § 853 action without an assignment from CIT, then the claims belonged to CIT. The fact that plaintiff may not have had standing to bring these claims until receiving the assignment did not relieve CIT of its obligation to bring any claims that it had in a timely fashion. No court ever stayed CIT from bringing such actions, and no court ever ruled that CIT lacked standing to assert its rights in the leasehold. However, neither CIT nor plaintiff asserted a cause of action under § 1983 or RPAPL § 853 within the prescribed time period. At the time CIT assigned its rights in the leasehold to plaintiff on July 27, 1991, its § 1983 and RPAPL § 853 claims were already time-barred. Because CIT could not assign to plaintiff greater rights in the leasehold than it had itself, plaintiff's § 1983 and RPAPL § 853 claims are time-barred.
Notwithstanding plaintiff's unauthorized "amendments" to her previously dismissed § 1983 and RPAPL § 853 claims, the fact remains that these claims were commenced over four years after the default judgment against CIT was upheld by the Second Circuit in 1987. Plaintiff's § 1983 and RPAPL § 853 claims alleged in the amended ...