The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge
On September 30 and October 1, 2009, this Court held an evidentiary hearing on the issue of whether the statute of limitations applicable to this action should be equitably tolled. For the reasons discussed below, plaintiff has not shown that equitable tolling is appropriate in this case. Accordingly, the complaint is dismissed on statute of limitations grounds.
On January 8, 2004, plaintiff James J. Mandarino ("James Sr.") filed suit against his son, James Mandarino ("James Jr."), and James Sr.'s former wife, Alexandria Paolercio, alleging that they stole property belonging to him beginning in 1993. See Complaint with Jury Demand, filed Jan. 8, 2004 (Docket # 1) ("Compl.") ¶¶ 19-47. In the complaint, plaintiff made claims under the Racketeering Influenced and Corrupt Organizations Act ("RICO") as well as claims for breach of fiduciary duty, common law fraud, conversion, and consumer fraud under state law. See id. ¶¶ 48-67. Defendants moved to dismiss on a number of grounds, including failure to state a claim and the bar imposed by the relevant statutes of limitations. See Notice of Motion to Dismiss in Lieu of an Answer Pursuant to Rule 12(b)(6) and to Impose Sanctions Pursuant to Rule 11, filed Mar. 5, 2004 (Docket # 5); Memorandum of Law in Support of the Motion of Defendants, James Mandarino and Alexandra Paolercio to Dismiss in Lieu of an Answer and to Impose Rule 11 Sanctions, filed Mar. 5, 2004 (Docket # 6), at 9-11. On July 14, 2005, the District Court, per Judge Kimba M. Wood, dismissed plaintiff's claims for consumer fraud for failure to state a claim and dismissed one fraud allegation with respect to events in 2003 for failure to plead fraud with particularity. Mandarino v. Mandarino, 2005 WL 1661098, at *3-5 (S.D.N.Y. July 14, 2005) ("Mandarino I"). The remaining claims were dismissed as time-barred under the relevant state and federal limitation periods. See id. at *2-3. Judge Wood further held that plaintiff's claims could not be tolled on the grounds of "mental incapacity" because James Sr. had "participat[ed] in two lawsuits during the time period of his alleged mental incapacity" and therefore could not "avail himself of New York's toll for insanity." Id. at *3.
On May 11, 2006, the Second Circuit affirmed the District Court's dismissal of the consumer fraud and 2003 fraud claims, but vacated dismissal of the remaining claims finding that James Sr.'s competency was a disputed factual issue. See Mandarino v. Mandarino, 180 F. App'x 258, 260-61 (2d Cir. 2006). Specifically, the court stated that "in the circumstances presented, the District Court should not have resolved the fact-specific equitable tolling issue on defendants' motion to dismiss." Id. at 261. The court suggested that it might be resolved on a summary judgment motion and further noted that "the District Court would act well within its discretion on remand if it required plaintiff to make" an "evidentiary showing" on the issue of incapacity "before proceeding further with the case." Id. After the case was remanded to the District Court, the parties consented to have this matter decided by the undersigned pursuant to 28 U.S.C. § 636(c). Consent to Proceed Before United States Magistrate Judge, filed May 29, 2007 (Docket # 46).
Following discovery on the issue of equitable tolling, the parties filed pre-trial order materials. See Joint Civil Pretrial Order, filed Mar. 30, 2007 (Docket # 34). Because discovery was not in fact concluded at that point, the parties engaged in additional discovery and then submitted pre-trial materials to the Court on May 5, 2008. See Letter from Kim E. Sparano, dated May 5, 2008 (Docket # 132) (attaching, inter alia, the Joint Pretrial Order) ("Joint Pretrial Order").*fn1 Upon review of these materials, the Court instructed the defendants to move for summary judgment inasmuch as they contended that there were no factual issues to be tried. Order, filed May 8, 2008 (Docket # 56), at 1. Following the filing of the summary judgment papers,*fn2 however, it became apparent that there were indeed disputed issues of fact and thus the Court denied the summary judgment motion. Order, filed Oct. 29, 2008 (Docket # 72) ("Oct. 29, 2008 Order"). The Court ordered that a hearing would take place on the issue of equitable tolling or estoppel. Id. at 1.*fn3 The Court also directed that this proceeding would be governed by the Pretrial Order previously submitted to the Court by the parties on May 5, 2008. Endorsed Letter, filed Jan. 27, 2009 (Docket # 91).
In the meantime, on May 8, 2008, James Sr. died. See Florida Certificate of Death (annexed as Ex. A to Declaration of Joseph DiGregorio, Esq., filed Apr. 20, 2009 (Docket # 110)). The Court substituted Patricia Mandarino, the personal representative of James Sr.'s estate, as the plaintiff in this matter. See Order, filed June 5, 2009 (Docket # 119).
On September 30 and October 1, 2009, the Court held a two-day evidentiary hearing on the issue of equitable tolling. Following the hearing, the parties filed memoranda of law. See Post-Trial Memorandum of Law of Plaintiff James J. Mandarino, filed Nov. 16, 2009 (Docket # 128) ("Pl. Mem."); Post Hearing Brief, filed Nov. 16, 2009 (Docket # 129); Post-Trial Opposition Memorandum of Law of Plaintiff James J. Mandarino, filed Nov. 30, 2009 (Docket # 130) ("Pl. Reply"); Post Hearing Reply Brief, filed Nov. 30, 2009 (Docket # 131).
B. Evidence at the Hearing
Originally the scope of the hearing was to decide James Sr.'s competency from 1993 until 2002. (See Tr. 12).*fn4 During the course of proceedings, however, defendants agreed to forgo arguing that James Sr. was competent during the period 1993 to 1994. (See Tr. 268-69). Accordingly, the Court has considered only the question of whether tolling is appropriate from January 1, 1995 through December 31, 2002.
We summarize the relevant testimony and evidence submitted by each party during the course of the hearing. The Court does not review any of the evidence introduced by plaintiff on the topic of alleged acts by defendants of forgery and conversion of property belonging to James Sr. because, contrary to plaintiff's argument, see Pl. Mem. at 13, these allegations have little or no bearing on James Sr.'s own mental competence.
Marisa Kaufman, the daughter of James Sr. and Paolercio, testified that on November 14, 1993, her father was hospitalized following a drug overdose. (Kaufman: Tr. 15-16). He remained in a coma for several days and when he awoke he "was very emotional" and "his speech was garbled." Id.at 16. Some time after his release from the hospital, her father and mother divorced and James Sr. left to live with his father in the Bronx. See id. at 76. Kaufman would see her father "on an intermittent basis every few months until his death." Id. at 19. During that time, she observed that her father's "speech was impaired, his mental facilities were much, much slower, his physical self was awkward, and he had a shuffling about his feet." Id. at 19-20. She testified that "had I not known he was my father, I would have thought he was mentally impaired." Id. at 20. She also testified that following his hospitalization, she would not leave her father unsupervised with her children "because he ...