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DAVIS v. NMU PENSION & WELFARE PLAN

December 22, 1992

MARTIN L. DAVIS, Plaintiff,
v.
NMU PENSION & WELFARE PLAN, Defendant.



The opinion of the court was delivered by: LORETTA A. PRESKA

 Preska, U.S.D.J.

 Defendant, the NMU Pension & Welfare Plan (the "Plan"), has moved to dismiss this action on the ground that it is barred by the statute of limitations. For the reasons set forth below, the Plan's motion is denied.

 I. BACKGROUND

 Plaintiff, Martin L. Davis ("Davis"), worked as a seaman on various ships and was a member of the National Maritime Union (the "Union") from 1944 through January 1984 when he retired. Davis Aff. PP 2-3, 11. Davis participated in the Plan, which, as explained further below, is related to the Union, from the Plan's inception in 1950, and Davis presently receives from the Plan a pension of $ 84 per month. Davis Aff. PP 4, 12.

 On December 6, 1990, Davis instituted this lawsuit pro se by filing a complaint (the "Complaint") seeking increased pension benefits from the Union, the sole named defendant, pursuant to the Age Discrimination in Employment Act (the "ADEA"). On September 14, 1990, Davis filed an amended complaint (the "Amended Complaint") naming only the Plan as defendant and claiming increased pension benefits pursuant to the Employees' Retirement Security Act ("ERISA"). Davis filed a subsequent amended complaint (the "Second Amended Complaint") also naming only the Plan as defendant and also grounded on ERISA on July 20, 1992.

 Three distinct issues are critical to deciding whether Davis timely instituted this action: (1) what statute of limitations applies; (2) when that statute of limitations began to run; and (3) whether the Second Amended Complaint relates back to the filing of the Complaint. I find that a six-year statute of limitations applies to this action and began to run on May 4, 1984 when Davis' first application for pension benefits was denied after he retired. Because I also find that the Second Amended Complaint relates back to the filing of the Complaint on December 6, 1990, this action is not barred by the statute of limitations, and the Plan's motion is denied.

 II. Applicable Statute of Limitations

 At first glance, the applicability to this action of New York's six-year statute of limitations period under § 213 of New York's Civil Practice Law and Rules ("CPLR") seems clear. Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.) (CPLR § 213 limitations period applies to ERISA cause of action), cert. denied, 464 U.S. 829, 78 L. Ed. 2d 108, 104 S. Ct. 105 (1983); Bologna v. NMU Pension Trust of NMU Pension & Welfare Plan, 654 F. Supp. 637, 639 (S.D.N.Y. 1987). The Plan maintains, however, that the two-year-ninety-day limitations period contained in its regulations (the "Plan Regulations") *fn1" shortened the six-year period because the Plan Regulations constitute a written agreement between Davis and the Plan pursuant to CPLR § 201. *fn2" I disagree.

 CPLR § 201 expressly demands a "written agreement" in order to shorten a limitations period. Although some dispute exists in this Court as to what constitutes a written agreement under § 201, I find that the Plan Regulations are insufficient. Compare Bologna, 654 F. Supp. at 639-41 (limitations period contained in the Plan Regulations inapplicable) with Scheirer v. NMU Pension & Welfare Plan, 585 F. Supp. 76 (S.D.N.Y. 1984) (limitations period contained in the Plan Regulations applicable).

 The Plan's argument fails for the simple reason that the parties did not mutually agree upon the Plan Regulations. The Plan's Board of Trustees (the "Trustees") unilaterally issued the Plan Regulations, and neither Davis nor the Union on behalf of Davis negotiated the limitations period contained therein. The Plan's argument under CPLR § 201 would be significantly stronger if the shortened limitations period was contained in the actual trust agreement establishing the Plan or in collective bargaining agreements. See Bologna, 654 F. Supp. at 639-40.

 To the extent that the Plan asserts that its trust agreement did authorize the shortened limitations period, I find that the Plan has made an insufficient showing to meet the requirements of CPLR § 201. Id.; Stanley R. Benjamin, Inc. v. Fidelity & Casualty Co. of New York, 72 Misc. 2d 742, 340 N.Y.S.2d 578 (Sup. Ct. 1972) (written agreement strictly construed against party invoking CPLR § 201). The Plan has not presented any language in the trust agreement or a collective bargaining agreement which speaks directly to the establishment of a shortened limitations period. In addition, the trust agreement can be construed to authorize regulations affecting only internal procedures and not the institution of lawsuits. Bologna, 654 F. Supp. at 640. *fn3"

 Furthermore, a limitations period shortened under CPLR § 201 must be reasonable under the circumstances. See Hart v. Anderson, No. 77 Civ. 2680 (MJL), slip op. at 23 (S.D.N.Y. April 24, 1981), aff'd mem., 671 F.2d 492 (2d Cir. 1981); John J. Kassner & Co., Inc. v. City of New York, 46 N.Y.2d 544, 415 N.Y.S.2d 785, 389 N.E.2d 99 (Ct. App. 1979); see also Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir. 1990) (sea carriers must reasonably communicate limitations period to passengers). In this case, it appears that the Plan did not communicate the shortened limitations period to Davis until his retirement; only at that time did the Plan distribute a Summary Plan Description to Davis. Davis Aff. P 15; Aff. of Albert Franco P 16. Although the Plan sent Davis several form letters over the years regarding his pension benefits, these letters did not notify Davis of the shortened limitations period. In view of these circumstances, the shortened limitations period contained in the Plan Regulations would not be ...


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