defamatory words about which she is complaining.
With respect to the defendants' arguments that plaintiff's claims are all time-barred, the Second Amended Verified Complaint makes clear that the alleged acts occurred approximately eight years before plaintiff filed her original complaint. At paragraph 43, plaintiff alleges that "for 8 years she diligently tried to protect her legal rights, by trying to commence a timely action on all causes of action against the defendants . . . ." Consistent with this allegation, in her first Amended Verified Complaint, at paragraph 6, plaintiff alleged that the acts complained of occurred in 1985. Therefore, the defendants argue, the Second Amended Complaint should be dismissed since the statute of limitations on each of plaintiff's claims is less than eight years.
The Court agrees. Count I, which alleges a private right of action for wiretapping under 18 U.S.C. § 2511, is governed by the two-year statute of limitations in 18 U.S.C. § 2520(e). The false imprisonment claim in Count II is governed by New York's one-year statute of limitations under N.Y.C.P.L.R. § 215(3) and the remaining § 1983 claims are governed by the C.P.L.R.'s three-year "catch-all" statute of limitations. See N.Y.C.P.L.R. § 214; see also Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989). Plaintiff's invasion of privacy and defamation claims in Count II are also governed by N.Y.C.P.L.R.'s one-year statute of limitations. See N.Y.C.P.L.R. § 215(3).
Moreover, in her opposition papers, plaintiff does not deny that her claims arose in 1985 and are therefore time-barred. Instead, she argues that the doctrine of equitable tolling should apply because her claims were fraudulently concealed by the defendants. Both the Second Amended Verified Complaint and her papers in opposition to the motion to dismiss, however, are totally devoid of specific allegations that would support a claim of fraudulent concealment. Accordingly, the Court rejects plaintiff's equitable tolling argument.
The defendants are also correct in that Count II fails to allege any state action sufficient to sustain a claim under 42 U.S.C. § 1983. The defendant network and broadcast corporations are purely private entities. There are no allegations in the Second Amended Verified Complaint that the defendants have been clothed with official power, and private actors are not, without more, subject to suit under § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Moreover, plaintiff has also failed to allege that the defendants conspired with any state actor. Unless private entities are "wilful participant[s] in joint activity with the state or its agents," they are not acting under color of state law as required to state a claim for relief under § 1983. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). For both of these reasons, plaintiff's § 1983 claim fails.
The defendants are also correct that New York does not recognize the common law tort of invasion of privacy. Howell v. New York Post Co., 596 N.Y.S.2d 350, 354 (1993). Indeed, the only right of privacy recognized under New York law is that created by § 50 of the New York Civil Rights Law, which provides that "a person . . . that uses for advertising purposes . . . the name, portrait or picture of any living person without having first obtained the written consent of such person . . . is guilty of a misdemeanor." This statute creates no right to privacy other than protection from commercial misappropriation, Davis v. High Soc. Magazine, Inc., 90 A.D.2d 374, 457 N.Y.S.2d 308, 312 (App. Div. 1982), which plaintiff does not allege. See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 739, 480 N.E.2d 349 (1985). Therefore, plaintiff's Count III must be dismissed.
Moreover, to the extent that plaintiff has made a claim of defamation, she has completely failed to identify with specificity the allegedly defamatory words as required by Fed. R. Civ. P. 9. Rather, plaintiff identifies the defamation only generally as being "of a highly offensive nature that any person of ordinary sensibilities would have been offended at the disclosure, of such matters of a private nature, matters such as private relationships, nudiety [sic], and other personal relationships, such as her sexual proclivities." It follows that the claim of defamation must be dismissed. SAC P 31.
Finally, in opposition to the motions to dismiss, plaintiff has requested leave to file a Third Amended Complaint. The defendants argue that plaintiff should be denied leave to file this complaint because the proposed amendments serve no useful purpose in correcting the deficiencies of the Second Amended Verified Complaint, see Albany Ins. Co. v. Esses, 831 F.2d 41, 45 (2d Cir. 1987), and because they are also legally insufficient to state a claim. See Foman v. Davis, 371 U.S. at 182 (denial of leave to amend not abuse of discretion where amendment would be futile); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied").
After a review of the proposed amendments, the Court has determined that the only differences between the proposed Third Amended Verified Complaint and the Second Amended Verified Complaint are that the latest version drops plaintiff's § 1983 claim and alleges the remaining causes of actions with even less specificity than the Second Amended Verified Complaint did. Moreover, to the extent that plaintiff has attempted to correct the statute of limitations infirmity in the Second Amended Verified Complaint, in which plaintiff swore that "for 8 years she diligently tried to protect her legal rights," SAC P 43, by not only dropping that language in the proposed complaint but also disavowing it and alleging instead that "the defendants conspired to commint [sic] such acts . . . within the two year statue [sic] of limitation period," Proposed Third Amended Verified Complaint P 5, plaintiff cannot abrogate her original verification. See Contractor Utility Sales Co. v. Certain-Teed Products, 638 F.2d 1061, 1084 (7th Cir. 1981) (prior superseded pleadings admissible in civil action as evidentiary admissions but not conclusive judicial admissions). Even assuming, arguendo, that that the proposed amendment might preclude a dismissal on the pleadings, it does not cure the other defects in the pleading which require dismissal. Therefore, permitting leave to amend would serve no purpose. Furthermore, in view of the previous admissions contained in the earlier Verified Complaints, a motion for summary judgment on grounds of limitations would in all likelihood be granted in any event. Accordingly, since plaintiff's proposed amendments do not cure any of the deficiencies that compel dismissal of the Second Amended Verified Complaint, the Court will not grant plaintiff leave to file the proposed Third Amended Complaint.
For the reasons stated above, defendants' motions to dismiss shall be and hereby are granted. The Second Amended Verified Complaint is dismissed with prejudice. Plaintiff's application to file a Third Amended Complaint is denied. The Clerk of Court is directed to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
February 1, 1995
John E. Sprizzo
United States District Judge
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