on statute of limitations grounds. Defendant Guthinger did not make a
similar motion. By Memorandum — Decision and Order filed on May 7,
1998, District Judge Lawrence Kahn found that plaintiff's allegation of
fraudulent concealment stated a claim and was sufficient to preclude
dismissal prior to completion of discovery. While the City defendants
argued that Paige had constructive knowledge at the time she reached age
eighteen to have brought the claims at that time, the court determined
that the earliest date it could identify as a matter of law, based upon
the allegations of the complaint, as the date of accrual was 1996.
Accordingly, the claims could not be dismissed at that time on statute of
limitations grounds. However, the court specifically reserved to the City
defendants the right to renew their motion to dismiss, on grounds other
than the statute of limitations, at a later time. It also acknowledged
that in the alternative, the defendants may wait until the completion of
discover to bring a motion for summary judgment. Therefore, a later
summary judgment motion based upon statute of limitations grounds brought
by the City defendants is permissible. Moreover, Guthinger did not make
an earlier motion to dismiss and therefore would not be bound by any
ruling made on the City defendants' prior motion.
Now that discovery is completed, all the defendants move for summary
judgment on the basis of the statutes of limitations. As such a motion
was contemplated at the time the City defendants' motion to dismiss was
denied, it is now properly before the court for decision.
B. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Richardson v. New York State Dep't of Correctional
Serv., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); Richardson, 180 F.3d at 436; Project
Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving
party has met the initial burden of demonstrating the absence of a genuine
issue of material fact, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56;
Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505; Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. At that
point the nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. To withstand a summary
judgment motion, sufficient evidence must exist upon which a reasonable
jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477
U.S. at 248-49, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at
587, 106 S.Ct. 1348.
C. Statutes of Limitations
The applicable statute of limitations for actions brought pursuant to
Sections 1983 and 1985 is three years. Jaghory v. New York State Dep't of
Educ., 131 F.3d 326, 331 (2d Cir. 1997). For actions brought pursuant to
Section 1986, one year is the applicable limitations period.
42 U.S.C. § 1986. A claim "accrues when the plaintiff knows or has
reason to know of her injury. Jaghory, 131 F.3d at 331; Eagleston v.
Guido, 41 F.3d 865, 870 (2d Cir. 1994). The statute of limitations is
tolled during a period of infancy. See N Y C.P.L.R. § 208; Henry v.
City of New York,
94 N.Y.2d 275, 278, 702 N.Y.S.2d 580, 724 N.E.2d 372 (N.Y. 1999).
The alleged assault that forms the basis for this law suit took place
in 1981. Paige does not dispute that she was aware of the alleged assault
since its occurrence in 1981. There is no question that the applicable
statutes of limitations were tolled during her infancy.
Paige reached the age of majority on October 13, 1986. The statutes of
limitations began to run on October 13, 1986, when the infancy toll
ended. Thus, for actions brought pursuant to Sections 1983 and 1985, the
statutes of limitations expired on October 13, 1989. For actions brought
pursuant to Section 1986, the statute of limitations expired on October
13, 1987. This lawsuit was filed on April 2, 1997, approximately ten
years after the statute of limitations expired for claims under Section
1986, and eight years after the statutes of limitations expired for
claims under Sections 1983 and 1985. Thus, actions brought pursuant to
Sections 1983, 1985, and 1986 are untimely absent some exception to the
standard application of the statutes of limitations.
Fraudulent concealment or misrepresentation by defendants tolls a
limitations period until the plaintiff discovers, or by due diligence
should have discovered, her cause of action. Keating v. Carey,
706 F.2d 377, 381-82 (2d Cir. 1983). Paige contends that defendants
fraudulently concealed facts essential to her claims. On the basis of
this fraudulent concealment, plaintiff argues that her claims did not
accrue until 1996, when she learned of the existence of the investigatory
file from a reporter, thus discovering facts essential to her claims.
Under this theory, the applicable statutes of limitations were tolled
until her discovery, in 1996, of these essential facts. According to
plaintiff's argument, therefore, all her claims were timely brought.
Paige's first four causes of action allege conspiracy to obstruct
justice, negligent failure to prevent a conspiracy to obstruct justice,
deprivation of due process and equal protection of the law, and
deprivation of access to the courts. Each of these four causes of action
are brought against all defendants. The basis for these four causes of
action is defendants' alleged cover-up of their inadequate investigation
of plaintiff's claims of sexual assault. The fifth cause of action,
brought against defendants Guthinger, the City of Schenectady Police
Department and the City of Schenectady, alleges excessive force used by
Guthinger against Paige in the 1981 incident.
In order to determine whether a genuine issue of fact remains for trial
on the issue of an equitable toll of the statute of limitations, it is
necessary to examine what facts were known to Paige, or with due
diligence she could have discovered, on or before October 13, 1987, and
October 13, 1989. If facts sufficient to state a claim were known or with
due diligence could have been known to plaintiff as of those dates, then
equitable tolling of the statutes of limitations is inappropriate and
summary judgment must be granted. On the other hand, if plaintiff did not
have sufficient information to commence the action by those dates, then
an issue would remain for trial and summary judgment would be
Plaintiff knew of the assault in 1981, at the time of its occurrence,
and at all times thereafter. She also knew that her assailant was a
police office and that the assault took place in a marked police vehicle.
She knew the identifying number of the police vehicle involved, and that
her complaint was investigated near the time of its occurrence. These
facts relating to the assault are sufficient to state a claim of
excessive force pursuant to Section 1983. Thus, plaintiff knew sufficient
facts well before the October 13, 1989, expiration of the statute of
limitations for her fifth cause of action in order to commence a lawsuit
pursuant to Section 1983. Accordingly, no equitable toll is appropriate
judgment must be granted as to Paige's fifth cause of action.
In addition to knowing the facts relating to the assault as just
recited, Paige knew that she had been interviewed by a police
investigator, who wrote a lengthy report which she signed. She believed
that photographs had been taken of her at the hospital. She knew that
police investigators went to the scene in the park and took photographs
there. She learned that the driver of police vehicle 114, identified by
her as the vehicle involved in the assault, had been driven by Guthinger
on the night of the assault. Additionally, she was aware that no charges
were ever lodged against Guthinger.
Before Paige reached her eighteenth birthday she had learned from
attorneys she retained that the police investigatory file relating to
Guthinger's assault on her could not be located by the police, the
attorneys having been told upon inquiry that no such file existed.
Shortly after her eighteenth birthday, plaintiff sought help from the
Mayor. The Mayor inquired about the police investigatory file, but was
told that no such file existed. The Mayor then told her that no such file
Thus, while knowing that an investigation had in fact been conducted,
that photographs had been taken, and that she had signed a lengthy report
during the investigation, Paige blandly accepted that no investigatory
file existed. She never made a written request for the file, and she
never attempted to obtain the file through freedom of information laws.
She never even went to the police station personally to inquire. It is
apparent, therefore, that with due diligence she could have discovered the
existence of the file.
Paige contends, however, that defendants' concealed from her the
existence of the file, preventing her from commencing the first, second,
third, and fourth causes of action. Again, by the time she had become an
adult plaintiff knew that the assault had occurred, an investigation had
been conducted, a report had been written, and photographs had been
taken. She also knew that there had been talk of a lie detector test to
corroborate her story and of a line up so she could attempt to identify
her attacker. She knew that neither of these investigatory tools were
used, but that on several occasions was told by the police that they had
insufficient facts to support her allegations of assault. Paige and her
family inquired about the progress of the investigation, but were not
informed of results. Further, she knew that Guthinger had never been
charged related to the assault, and in fact had remained on the police
force for some years afterward. Finally, based upon two inquiries around
the time of her eighteenth birthday she was told that there was no
Armed with all of this knowledge, Paige should have been alerted that
there may be some sort of cover-up occurring. With due diligence she
could have inquired further and discovered additional facts to support
her causes of action. Even without the police investigatory file
regarding the 1981 incident, Paige had at her disposal, on October 13,
1987, and October 13, 1989, more than sufficient facts to commence this
action. Under such circumstances, the City defendants' concealment of the
investigatory file from her does not toll the statute of limitations.
Plaintiff cites Yeadon v. New York City Transit Auth., 719 F. Supp. 204
(S.D.N Y 1989) in support of her arguments that summary judgment should
be denied. In Yeadon, the plaintiffs "introduced sufficient evidence to
create issues of fact as to the availability" of a toll in the
limitations period based upon fraudulent concealment of facts that would
have revealed plaintiffs' claims for false arrest. Id. at 209. The
plaintiffs in Yeadon uncovered an investigative report finding
irregularities in arrests that was concealed from them and set forth
repeated misrepresentations by defendants about the circumstances
surrounding their arrests. Id. at 208-09.
Plaintiffs created a question of fact as to lack of awareness of the
falsity of their arrests due to defendants' concealment. Id. at 210.
Additionally, plaintiffs in Yeadon made a preliminary showing of
diligence to discover the true facts surrounding their arrests. Id. The
Yeadon Court therefore found that an issue for trial existed. Id. at
Here, unlike the plaintiffs in Yeadon, Paige had knowledge of the
assault, the investigation, the lack of action to prosecute her
assailant, and the fact that the investigatory file was lost or'
destroyed. Merely having been told by her prior attorney and the Mayor
that there was no investigatory file is insufficient to support a claim
of fraudulent concealment, given plaintiff's knowledge of all the other
facts. Moreover, the lack of a meaningful investigation by the
Schenectady Police Department of very serious charges made against
officer Guthinger and the subsequent claim that the investigatory file
was lost or destroyed are evidence that the City defendants concealed the
assault upon the plaintiff from the public. As a result, the public had
no knowledge of the assault and, to put it kindly, the inept
investigation. Paige, however, was in a unique position in that she
always possessed detailed knowledge of the facts surrounding the assault
and the investigation or lack thereof.
Paige knew of sufficient facts, or with due diligence could have
secured such knowledge, in order to commence a suit based upon her
first, second, third, and fourth causes if action well within the
applicable statutes of limitations. Evidence Paige sets forth indicating
concealment of the assault from the public does not support fraudulent
concealment from her, given her detailed knowledge. Accordingly, no
equitable toll is appropriate and summary judgment must be granted as to
Paige's first, second, third, and fourth causes of action.
There is no genuine issue for trial on the issue of availability to
Paige of a toll in the statutes of limitations based upon fraudulent
concealment. Paige's claims therefore accrued in 1986, when she reached
the age of majority and the infancy toll expired. The complaint, filed in
1997, is barred by the applicable statutes of limitations.
Accordingly, it is
ORDERED that defendants' motions for summary judgment are GRANTED and
the complaint is DISMISSED in its entirety.
IT IS SO ORDERED.
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