MEDIA

August 8, 2003

Class Action Cannot Be Prevented by Paying Plaintiff in Full

Published in: New York Law Journal | volume 230
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, in one case, Judge David G. Trager precluded a defendant from heading off a class action by offering to pay the named plaintiff in full before the class could be certified. In another, Judge I. Leo Glasser rejected plaintiff’s assertion that his claim challenging his demotion did not accrue until he later applied for pension benefits. Judge Arthur D. Spatt, on still another case, saw no constitutional problem regarding a state judge’s imposition of consecutive sentences for murder, robbery and assault committed during an intrusion into a Long Island home. Finally, Judge Trager also held that plaintiff was estopped from asserting Rehabilitation Act claims for a period when he had received Social Security disability benefits.

Fair Debt Collection Practices Act

In Vega v. Credit Bureau Enterprises, 02 CV 1550 (EDNY, July 10, 2003), Judge Trager denied defendant’s motion for summary judgment and dismissal of this class action, even though defendant had offered judgment to the named plaintiff for the maximum amount available under the statute for her individual claim. The court held that plaintiff should have the chance to make her motion for class certification.

Defendant submitted its offer of judgment pursuant to Rule 68 in the amount of $1,000, "representing the maximum amount available to plaintiff Vega under the Fair Debt Collection Practices Act, 15 USC § 1692(k)," plus reasonable costs and attorney’s fees. Defendant argued that its offer made plaintiff’s claim moot, and that, because plaintiff had not yet moved for class certification, the class action complaint should be dismissed.

Judge Trager disagreed with courts that had dismissed cases at this stage under similar circumstances. In Judge Trager’s view a dismissal here would "enable defendants to preempt class certification by ‘picking off’ named plaintiffs with offers of judgment." The court therefore refused to dismiss the action before plaintiff had an opportunity to compile the record necessary to support a motion for class certification.

Statute of Limitations

In Dunker v. City of New York, 01 CV 0886 (EDNY, July 30, 2003), Judge Glasser held that plaintiff’s § 1983 claims accrued when he was demoted to the position of substitute teacher, rather than years later, when he applied for retirement and received no credit toward his pension for the years worked following his demotion. The court therefore found that plaintiff’s claims, even apart from other deficiencies, were barred by the statute of limitations.

In 1994, the chancellor of the New York City public schools informed plaintiff that his teacher’s license was revoked for failure to meet eligibility requirements. Plaintiff’s status reverted to that of a substitute teacher. He worked as a substitute teacher from 1994 to 1999, when he retired. In 2001, he filed the instant complaint challenging his license revocation and related conduct.

Faced with a three-year limitations period for constitutional torts, plaintiff argued that his claims did not accrue until he retired and applied for pension credit for his years as a substitute teacher. Rejecting that argument, Judge Glasser stated:

[T]o the extent that [plaintiff’s] claims are based upon the reduction in his "salary, pension contributions and retirement benefits" … that followed as a result of the license revocation, they merely seek to litigate the current effects of an act that occurred outside the limitations period. Yet discrete acts that occur within the time period cannot reach back to make timely those acts which occurred before the limitations period.

Habeas Corpus: Consecutive Sentences

In Ashby v. Senkowski, 03 CV 0028 (EDNY, July 3, 2003), Judge Spatt, denying a § 2254 petition, saw no constitutional issue warranting habeas relief with respect to the state trial judge’s imposition of consecutive sentences.

During a burglary and robbery of a family home in Valley Stream, petitioner repeatedly hit the mother. When her husband and 23-year-old son, unaware of the intrusion, entered the house, petitioner shot them both, killing the son. Petitioner was convicted after a jury trial of three counts of second-degree murder (the indictment parsed the killing of the son into two counts of felony murder and one of depraved indifference murder), first-degree assault, burglary and several counts of robbery. The sentences for the murder convictions were directed to run concurrently with each other. One of those murder sentences (depraved indifference) was to run consecutively with the sentences for robbery and assault. The robbery and burglary sentences were made concurrent to each other, and the assault sentence was made consecutive to those on all other counts.

Despite the pro se petitioner’s failure to exhaust state court remedies, Judge Spatt chose to consider the merits of the petition, as authorized by the Antiterrorism and Effective Death Penalty Act (AEDPA).

Essentially, petitioner argued that the sentences for murder should run concurrently with those for robbery (and burglary), because the offenses were "committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other[.]" N.Y. Penal Law § 70.25(2).

Judge Spatt found no error, much less one calling for habeas relief. Since the sentences fell within the range provided by state law, there was no constitutional issue. The trial judge, moreover, had discretion to impose consecutive sentences for offenses representing "separate and distinct acts." Slip op. 10. Finally, despite the severity of the punishment (in the aggregate, 33 and one-third years to life in prison), the consecutive sentences did not amount to cruel and unusual punishment.

Rejecting a number of challenges to pretrial photo and line-up identification procedures, Judge Spatt emphasized that (1) the danger of misidentification was reduced by (among other things) the witness’ opportunity to view hundreds of photographs of individuals similar to petitioner in age and race; and (2) the in-court identification was independently reliable given the witness’ direct observations of petitioner’s face at the time of the offense. Slip op. 10-15.

Rehabilitation Act

In Boxill v. Brooklyn College, City University of New York, 96 CV 561 (EDNY, July 10, 2003), Judge Trager denied plaintiff’s Rule 60(b) motion to reconsider dismissal of his claims under the Rehabilitation Act of 1973, where plaintiff could not reconcile those claims with his collection of Social Security disability benefits.

Mr. Boxill worked for Brooklyn College from 1973 until his retirement in 1995. In December 1989, Mr. Boxill was diagnosed with congestive heart failure. He took a number of leaves of absence from his job until March 1992, when he received disability benefits from an academic annuity program. After Mr. Boxill was informed that his private benefit payments were ending, he notified Brooklyn College in 1993 that he wished to return to work. Before granting this request, Brooklyn College required him to undergo a series of medical exams, which lasted from March 1993 through early 1994. During this period, Mr. Boxill applied for Social Security disability benefits, claiming that his heart condition rendered him unable to work. Although he was initially denied Social Security benefits, he received them from some point in 1993 through 1994. Mr. Boxill returned to work in April 1994, but left again in December 1994 when his heart condition worsened. He underwent open-heart surgery in February 1995 and retired the next month.

Mr. Boxill sued Brooklyn College claiming that it had discriminated against him because of his race and perceived disability by not allowing him to return to work from March 1993 through April 1994. Judge Trager found Mr. Boxill judicially estopped from pursuing his Rehabilitation Act claims since, during the time he sought to be employed, he collected disability benefits. The court had given Mr. Boxill three weeks after oral argument to submit evidence that he qualified for the limited exception from the rule barring a plaintiff who has collected disability benefits from maintaining a Rehabilitation Act claim. After Mr. Boxill failed to produce any such evidence prior to entry of judgment, Judge Trager granted summary judgment in favor of Brooklyn College.

Mr. Boxill based his Rule 60(b) motion on "newly discovered evidence" in the form of a Social Security Administration (SSA) booklet explaining how persons receiving benefits may claim that they are willing, ready and able to work and at the same time receive Social Security benefits for as long as nine months. Mr. Boxill obtained a copy of this booklet and provided it to his lawyer 10 days before judgment was entered.

Judge Trager first found plaintiff’s motion timely because it was submitted within a year after judgment. The evidence, however, was not "newly discovered" given Mr. Boxill’s weak assertions of due diligence and his admitted possession of the evidence prior to entry of judgment.

In any event, the court held, the evidence would not have changed the result, because Mr. Boxill was judicially estopped from asserting that he was qualified for employment, while simultaneously asserting to the SSA that his disability prevented him from working. Plaintiff never explained how he qualified for "the narrow exception to the general rule that a person may not simultaneously receive Social Security benefits and assert that they are fit to work full time," slip op. 12, or why he was both disabled and able to work. Judge Trager interpreted the SSA booklet to protect persons who already are collecting Social Security benefits, but want to re-enter the work force, not people like plaintiff, who asserted that he was fit to return to work, but should be able to collect Social Security "as some form of unemployment insurance.’

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the August 8, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]