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WENZEL v. NASSAU COUNTY POLICE DEP'T

February 14, 1996

MARY ANN WENZEL, Plaintiff, against THE NASSAU COUNTY POLICE DEPARTMENT and THE COUNTY OF NASSAU, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The plaintiff, Mary Ann Wenzel (the "plaintiff" or "Wenzel"), is a former Nassau County Police Officer who brought this lawsuit pursuant to 42 U.S.C. § 1983. She filed her Complaint in federal court on October 29, 1993 alleging violations of her civil rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. The gravamen of Wenzel's Complaint is that she was deprived of her personal and individual liberty, and was made a virtual prisoner in her own home, as a result of the defendants' harassment and intentional infliction of severe emotional distress.

 The defendants deny the plaintiff's allegations and filed a motion for judgment on the pleadings dismissing the Complaint pursuant to Fed. R. Civ. P. 12(c) on March 24, 1995. The defendants contend that the claims are time barred because the statute of limitations had expired prior to the date Wenzel filed the Complaint. Specifically, the defendants assert that the alleged unlawful activity transpired in 1986 and 1987 and, the three year statute of limitations applicable in section 1983 actions expired in 1990. See Owens v. Okure, 488 U.S. 235, 250, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989), aff'g, 816 F.2d 45 (2d Cir. 1987) (recognizing the three year statute of limitations applicable in section 1983 actions). Alternatively, the defendants contend that even if the Court found that the unlawful activity continued until Wenzel retired from the police force on May 5, 1990, her claims would still be time barred because the statute of limitations would have expired on May 4, 1993 and she did not file this lawsuit until October 29, 1993.

 While the plaintiff admits that she did not commence this action until sometime after the statute of limitations had expired, she contends that the action is timely because the statute of limitations was tolled pursuant to New York Civil Law and Practice Rules ("CPLR") § 208 as a result of her insanity.

 On August 5, 1995, this Court issued a Memorandum of Decision and Order with respect to the motion for judgment on the pleadings. Familiarity with said Memorandum Decision is presumed. In its August 5, 1995 decision the Court referred this matter to United States Magistrate Judge Viktor V. Pohorelsky to conduct a hearing and report and recommend as to whether the statute of limitations should be tolled "during part or all of the period from May 1990 until October 1993," pursuant to the provisions of CPLR section 208, so that the plaintiff's claims would be preserved.

 I. The report and recommendation

 On October 17, 1995, Magistrate Judge Pohorelsky issued a report recommending that the insanity provisions of CPLR section 208 did not toll the statute of limitations. As this Court recognized in its August 5, 1995 decision,

 
CPLR § 208 states that the statute of limitations period is extended if "a person entitled to commence an action is under a disability because of . . . insanity at the time the cause of action accrues.
 
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Significantly, apathy, depression, posttraumatic neurosis, psychological trauma and repression therefrom, or mental illness alone have been held to be insufficient to invoke the tolling provisions of CPLR § 208. See, e.g., McCarthy, 55 N.Y.2d at 548-49, 450 N.Y.S.2d at 460 (other citations omitted). Rather, the mental disability must be "severe and incapacitating." Sanders v. Kiley, 1995 U.S. Dist. LEXIS 2130 at *12-*13 (S.D.N.Y. 1995). . . . However, where repression, trauma or neurosis is "but one of a bundle of claimed injuries the totality of which, if established, would indicate an overall inability to function in society, then the Statute of Limitations will be tolled. Anonymous v. Anonymous, 154 Misc. 2d 46, 584 N.Y.S.2d 713, 721 (Sup Ct. Suffolk Co. 1992).

 Wenzel v. Nassau County Police Department, 93 CV 4888 (ADS) (August 5, 1995) at 10-12 (Spatt, J.).

 Applying these standards narrowly, see McCarthy, 55 N.Y.2d at 548, 450 N.Y.S.2d at 460, Magistrate Judge Pohorelsky determined that the plaintiff was not insane as that term is applied in CPLR section 208, and therefore the statute of limitations had not been tolled. In reaching this conclusion the Magistrate Judge recognized that while Wenzel paid "a heavy psychological toll, . . . including bouts of depression, apathy and anxiety," following the birth of her severely handicapped daughter in 1987, she was not so "incapacitated as to prevent her from ...


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