Vayani v. Pohani et al

Filing 108

MEMORANDUM OPINION AND ORDER re: 78 MOTION to Dismiss Notice of Motion To Dismiss. filed by Denis Johnston, Todd Jenning, Thomas Giordano, Michael P. Fishman, Mike Graham, Hector J. Figueroa, Local Union 32BJ SEIU, 75 MOTION to Dismiss . filed by Milman Labuda Law Group Pllc, Joseph Labuda Counsel 146 West Building and Berik Management, 69 MOTION to Dismiss . filed by Charles Dorego, Susan Cowell, Alan Snyder, John Pagnotta, Howard I. Roth schild, Angelo Dascoli, Michael P. Fishman, Kyle Bragg, Regine Breton, John Santora, Linda Nelson, Lenore Friedlaender, Kevin J. Doyle, Larry Engelstein, Hector J. Figueroa, Michael Geffner, Fred Ward, Brian Lambert, 83 MOTION to Dism iss Notice of Motion to Dismiss. filed by 146 West 29th Street Owners Corporation, Geeta Pathak, Berik Management, Rikin Sheth. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed , the arguments are either moot or without merit. For the reasons explained above, the defendants' motions are granted. The Clerk is directed to enter judgment dismissing the Second Amended Complaint. The Clerk is also directed to close all pending motions and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 8/11/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ABDUL KHALIQ VAYANI,
Plaintiff,

16-cv-1774 (JGK)

- against -

MEMORANDUM OPINION AND
ORDER

146 WEST 29TH STREET OWNERS CORP.,
ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Abdul Khaliq Vayani, brings this action pro
se against his employer and various managers 1 (“the Employer
defendants”); Service Employees International Union, Local 32BJ
and various managers and employees of that union 2 (“the Union
defendants”); and the Union’s benefit funds and its various
trustees and administrators 3 (“the Funds defendants”). The
plaintiff alleges violations of a variety of federal and state

1

The Employer defendants are 146 West 29th Street Owners
Corporation, Berik Management, Berik Mangement’s president Rikin
Sheth, and Berik Management’s former accountant Geeta Pathak.
2

The Union defendants are Local 32BJ of the Service Employees
International Union (“Local 32BJ”), and individual defendants Michael
Fishman, Hector J. Figueroa, Todd Jenning, Denis Johnston, Mike
Graham, and Thomas Giordano, all in their capacities as officers of
Local 32BJ and/or the Service Employees International Union (“SEIU”).
3

The Funds defendants are Michael Fishman, Hector Figueroa,
Kevin Doyle, Brian Lambert, Kyle Bragg, Larry Engelstein, John
Pagnatta, Lenore Friedlander, Howard Rothschild, John Santora, Charles
Dorego, Fred Ward, Susan Cowell, Regine Breton, Angelo Dascoli, Linda
Nelson, and Alan Snyder, all in their official capacities as trustees,
employer trustees, and/or administrators of the Local 32BJ Health
Fund, Pension Fund, Supplemental Retirement and Savings Fund, Training
Scholarship and Safety Fund, and/or Legal Services Fund.

1

laws related to the plaintiff’s attempts to join Local 32BJ and
gain coverage under the relevant Collective Bargaining Agreement
(“CBA”).
The Employer defendants, Union defendants, and Funds
defendants move to dismiss all claims against them under Federal
Rule of Civil Procedure 12(b)(6). In the alternative, the Funds
defendants also request to convert the motion to dismiss to a
motion for summary judgment pursuant to Rule 12(d) of the
Federal Rules of Civil Procedure.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
2

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted). “Even in a pro se case, however, . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citation omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint supports,
it “cannot invent factual allegations that [the plaintiff] has
not pled.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Taylor v. Vt. Dep’t of
Educ., 313 F.3d 768, 776 (2d Cir. 2002).

3

“If, on a motion under Rule 12(b)(6) . . . matters outside
the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d).

Both the Funds defendants and

the plaintiff have filed documents in connection with their
pending motions. 4

Accordingly, the Funds defendants’ 12(b)

motion is converted into a motion for summary judgment under
Rule 56. See Cardona v. Vidal, No. 06-cv-13680 (JGK), 2008 WL
2856455, at *1 (S.D.N.Y. July 24, 2008).
Summary judgment may not be granted unless “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a

4

Rule 12(d) provides that “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent
to the motion.” The Funds defendants notified the plaintiff that
their motion could be converted to a motion for summary judgment,
advised the plaintiff of the requirements of Rule 56, provided a copy
of that Rule, and advised the plaintiff to submit any evidence to
support his claim. See Docket No. 72.
The plaintiff does not appear
to oppose the conversion of the motion, and submitted extensive
documentary evidence as part of his opposition to the Funds
defendants’ motion to dismiss. See Docket No. 92. Thus, conversion is
appropriate in this case. See Cardona v. Vidal, No. 06-cv-13680
(JGK), 2008 WL 2856455, at *1 n.1 (S.D.N.Y. July 24, 2008); Rutigliano
v. City of New York, No. 07-cv-4614, 2008 WL 110946, at *2 (S.D.N.Y.
Jan. 2, 2008) (“[T]he essential inquiry [in a conversion] ... is
whether the non-movant should reasonably have recognized the
possibility that the motion might be converted into one for summary
judgment. . . .” (quoting Krijn v. Pogue Simone Real Estate Co., 896
F.2d 687, 689 (2d Cir. 1990) (internal quotation marks omitted))); see
also Cantrell v. Igie, No. 16-cv-00903(JGK), 2016 WL 7168220, at *2 n.3
(S.D.N.Y. Dec. 8, 2016).

4

matter of law.” Fed. R. Civ. P. 56(c); see also Matican v. City
of N.Y., 524 F.3d 151, 154 (2d Cir. 2008). “[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them.”
Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224
(2d Cir. 1994). In determining whether summary judgment is
appropriate, a court must resolve all ambiguities and draw all
reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); Gallo, 22 F.3d at 1223. In
addition, the Court must give a pro se litigant special latitude
in responding to a summary judgment motion. See McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999). The Court must “read
the pleadings of a pro se plaintiff liberally and interpret them
to raise the strongest arguments that they suggest.” Id.
(internal quotation marks and citation omitted); see also
Cantrell v. Igie, No. 16-cv-00903(JGK), 2016 WL 7168220, at *1–2
(S.D.N.Y. Dec. 8, 2016).
II.
A.
The allegations in the Second Amended Complaint (“SAC”) are
accepted as true for the purposes of the Union defendants’ and
the Employer defendants’ motion to dismiss. With respect to the
5

Funds defendants’ motion for summary judgment, the facts are
drawn from all of the evidence in the record and are construed
in the light most favorable to the plaintiff.
In April 1990, the plaintiff was employed as a security
guard by 146 West 29th Street Owners Corporation (“Owners
Corp.”). SAC ¶ 1. Berik Management is the managing agent of
Owners Corp.

See SAC Ex. 5 at 3. Owners Corp. had a CBA with

union Local 32BJ but the agreement was unclear as to whether it
applied to security guards. See SAC, Ex. 6 at 6 (“Arbitration
Award”). Throughout his employment, the plaintiff made a number
of unsuccessful attempts to join Local 32BJ and gain coverage
under the CBA. See, e.g., SAC ¶¶ 24, 55.
Sometime in 2006, auditors for the Funds defendants audited
Berik Management’s accounts and determined that Berik Management
should have made contributions to certain funds on Vayani’s
behalf.

Arbitration Award at 3.

While Berik Management

disputed the claim, it ultimately settled with the Funds
defendants by depositing $26,263.79 into benefits accounts on
the plaintiff’s behalf for the years 2004 and 2005, but the
settlement did not explicitly address the issue of whether the
plaintiff was covered by the CBA. See, e.g., SAC ¶¶ 21, 130;
Arbitration Award at 3.

However, by March 19, 2008, Owners

Corp. and Local 32BJ entered into a “Letter of Agreement” and
explicitly agreed that “security guards are specifically
6

excluded from coverage under the [CBA].” SAC, Ex. 3.

It further

appears that Berik Management made contributions to the
plaintiff’s Supplemental Retirement and Savings Fund account as
recently as November of 2008.

See SAC ¶ 21; Ex. 7.

Upon learning that Owners Corp. had deposited funds on his
behalf, the plaintiff engaged counsel to look into the matter.
Arbitration Award at 4. The issue was brought before an
arbitrator, with the Funds defendants claiming that the
plaintiff was covered under the CBA.

Arbitration Award at 5.

According to the Arbitration Award, counsel for the Funds
defendants notified the plaintiff of the hearing, but he did not
attend.

Arbitration Award at 5 n.*.

The arbitrator ultimately

concluded that the plaintiff was not a member of the union and
was not covered under the CBA, stating that the plaintiff had
“been treated by his employer . . . and the Union as non-covered
by the [CBA] during the period of his tenure, that such
treatment was memorialized in the 2008 side letter, and that
such treatment was not unreasonable under the circumstances.”
Arbitration Award at 6. The plaintiff was notified of the
arbitrator’s decision and received a copy of the Arbitration
Award on March 13, 2010. SAC ¶ 119.
After the Arbitration Award, it appears that the Funds
defendants returned the $26,263.79 to the Employer defendants,
as well as $2,131.25 of the amounts previously contributed to
7

the plaintiff’s Supplemental Retirement Savings Fund.
¶ 21.

See SAC

According to the plaintiff, a balance of $1,352 remains

in his Supplemental Retirement Savings Fund. 5 SAC ¶ 21.
Thereafter, the plaintiff continued to attempt to get
information regarding coverage under the CBA and his status as a
union member from the Employer defendants, Union defendants, and
Funds defendants. See, e.g., SAC ¶¶ 101-05; Exs. 11, 18, 29, 30,
34.

The plaintiff alleges that he did not receive any

documentation from any of these requests, with the exception of
one response to 2013 letters he sent to Local 32BJ. SAC ¶ 101,
103.
In December 2007, the plaintiff filed Charges of
Discrimination against Berik Management with the Equal
Employment Opportunity Commission (“EEOC”). SAC ¶ 66, Ex. 1.
Berik Management served a position statement in response on
October 15, 2008. SAC ¶ 9, Exs. 2, 5. In December of 2008, the
EEOC dismissed the charges and sent the plaintiff a right to sue

5

According to the Funds defendants, after the Arbitration Award,
all amounts initially contributed by the Employer defendants in the
plaintiff’s name were refunded except the amounts related to the
Supplemental Retirement Savings Fund because “a separate provision in
the law had to be applied in the context of refunds of annuity fund
contributions. The contributing employer did not press to be refunded
these sums and hence the money remained in place in a segregated shell
account for Vayani.” See Funds Def.’s Reply, at 8 n.2. It appears
that the $1,352 the plaintiff references as remaining in his account
is the amount remaining in this segregated shell account.

8

letter, but the plaintiff did not pursue the claim because his
son was diagnosed with leukemia. SAC ¶ 24; Ex. 19.
On March 10, 2016 the plaintiff filed this lawsuit by
filing a complaint that listed certain defendants and statutes,
expressed concern about the statute of limitations, but included
no factual allegations. See Docket No. 1. The Court ordered the
plaintiff to amend his complaint, and the plaintiff filed an
Amended Complaint on July 8, 2016. See Docket Nos. 3; 10.

The

plaintiff filed the SAC on December 16, 2016, and the present
motions followed.
III.
A.
For purposes of deciding the motions seeking dismissal for
failure to comply with statutes of limitations, it is plain that
the plaintiff’s claims cannot relate back to the date of the
filing of his original complaint on March 10, 2016.

That

complaint contained no factual allegations, and as such,
defendants were not provided with “adequate notice of the
matters raised” in the amended complaint filed on July 8, 2016.
See ASARCO LLC v. Goodwin, 756 F.3d 191, 202 (2d Cir. 2014)
(quotation marks and citation omitted) (determining that a newly
added claim in an amended complaint did not relate back because
the original complaint “contained no facts whatever about” the
newly added claim); see also Fed. R. Civ. P. 15(c)(1)(B).
9

Accordingly, July 8, 2016 is the operative date for the purposes
of analyzing the statutes of limitations for the plaintiff’s
claims.
B.
The plaintiff asserts a variety of claims related to his
exclusion from Local 32BJ and coverage under the CBA.

The

Employer defendants argue that the plaintiff is collaterally
estopped from asserting such claims as a result of the
Arbitration Award determining that the plaintiff was excluded
from coverage under the CBA.
There are two essential elements to collateral estoppel in
New York. “First, the identical issue necessarily must have been
decided in the prior action and be decisive of the present
action, and second, the party to be precluded from relitigating
the issue must have had a full and fair opportunity to contest
the prior determination.” Jenkins v. City of N.Y., 478 F.3d 76,
85 (2d Cir. 2007) (quoting Juan C. v. Cortines, 679 N.E.2d 1061,
1065 (N.Y. 1997)). “Generally a nonparty to the prior litigation
may be collaterally estopped by a determination in that
litigation only if he has ‘a relationship with a party to the
prior litigation such that his own rights or obligations in the
subsequent proceeding are conditioned in one way or another on,
or derivative of, the rights of the party to the prior
litigation.’” Id. (quoting D’Arata v. New York Cent. Mut. Fire
10

Ins. Co., 564 N.E.2d 634, 637 (N.Y. 1990)). “Collateral estoppel
appl[ies] to issues resolved by arbitration ‘where there has
been a final determination on the merits, notwithstanding a lack
of confirmation of the award.’” Jacobson v. Fireman’s Fund Ins.
Co., 111 F.3d 261, 267-68 (2d Cir. 1997) (quoting Hilowitz v.
Hilowitz, 444 N.Y.S.2d 948, 949 (App. Div. 1981)).
Similarly, “[u]nder federal law, a party is collaterally
estopped from relitigating an issue if a four-part test is met:
(1) the identical issue was raised in a previous proceeding; (2)
the issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to
litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.”
Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d 412,
417 (2d Cir. 2015) (quoting Boguslavsky v. Kaplan, 159 F.3d 715,
720 (2d Cir. 1998).

“Moreover, collateral estoppel can be

predicated on arbitration proceedings.”
F.3d at 720 (collecting cases).

See Boguslavksy, 159

Under federal law, a nonparty

may be bound by a prior proceeding if the nonparty was
“adequately represented by someone with the same interests who
[wa]s a party” in the prior proceeding. Taylor v. Sturgell, 553
U.S. 880, 894 (2008) (quotation marks and citation omitted).

A

party’s representation of a nonparty in a prior proceeding may
be adequate if: (1) the interests of the representative party in
11

the prior proceeding and the nonparty were aligned; (2) the
party understood that it was acting in a representative capacity
to the nonparty; and (3) notice of the original proceeding was
given to the nonparty alleged to have been represented.

See id.

at 901 (citations omitted).
Here, the Funds defendants sought arbitration to pursue a
claim identical to the one the plaintiff pursues in this action,
namely, to establish that “a guard named Abdul Vayani engaged by
the employer[,] was covered by the [CBA].”

Arbitration Award at

5.
By seeking CBA coverage for the plaintiff in the
arbitration proceedings, the Funds defendants sought to
establish the “rights” of the plaintiff with respect to his
coverage under the CBA, such that any “subsequent proceeding”
with respect to the plaintiff’s CBA coverage was “conditioned in
one way or another on, or derivative of, the rights of the
[Funds defendants] to the prior [arbitration].”

Jenkins, 478

F.3d at 85; see also Jacobson, 111 F.3d at 267-68.
Similarly, the plaintiff and the Funds defendants interests
were aligned in that they both sought coverage for the plaintiff
under the CBA, and the Funds defendants understood that they
were representing the plaintiff’s interests in the arbitration.
See Arbitration Award at 1 (“The Funds claim that the Employer
has failed and refused to pay benefit contributions on behalf of
12

Abdul Vayani, an employee eligible for said benefits under the
terms of the [CBA].”); see also Taylor, 553 U.S. at 901.
Moreover, it appears that the plaintiff was notified of the
arbitration hearing but did not attend.

See Arbitration Award

at 5 n.*; see also Taylor, 553 U.S. at 901.

The plaintiff

admits that he received the arbitrator’s decision on March 13,
2010, but did not challenge the award.

See SAC at ¶ 119

(stating that counsel for the union “sent me an Arbitration
Decision on March 11, 2010 by mail and I received [it] on March
13, 2010.”).
The arbitrator ultimately concluded that the plaintiff “has
been treated by his employer (or contractor) and the Union as
non-covered by the [CBA] during the period of his tenure” and
that as a result, “the claim advanced by the Funds must fail.”
Arbitration Award at 6.

Accordingly, the plaintiff is

collaterally estopped from pursuing claims seeking coverage
under the CBA.
Because the Arbitration Award determined that the plaintiff
was not a member of Local 32BJ and not covered under the CBA,
the plaintiff has no standing to sue the Union defendants for
breach of their constitution and bylaws. See Yerdon v. Henry, 91
F.3d 370, 379 (2d Cir. 1996) (dismissing claim for breach of
union constitution because the plaintiff’s allegations did not
concern the plaintiff’s rights as a member of the union).
13

The

Court also lacks jurisdiction to hear the plaintiff’s various
claims asserting violations of the Labor Management Reporting
and Disclosure Act (“LMRDA”).

See Phelan v. Local 305 of United

Ass’n of Journeymen, & Apprentices of Plumbing & Pipefitting
Indus. of U.S. & Canada, 973 F.2d 1050, 1056 (2d Cir. 1992)
(concluding that the LMRDA regulates only the relationship
between a union and its members, and noting that “courts have
refused to entertain suits by plaintiffs against unions that
have rejected them for membership”).

And the plaintiff’s

various claims under the Employee Retirement Income Security Act
of 1974 (“ERISA”) are barred because under the relevant portions
of 29 U.S.C. § 1132(a), civil actions under ERISA may be brought
only by a plan participant or beneficiary, and the Arbitration
Award, by concluding that the plaintiff was not covered under
the CBA, established that the plaintiff is neither a participant
or beneficiary under the relevant plans. 6
The plaintiff alleges that the Employer defendants and the
Funds defendants committed fraud against him based on alleged

6

The plaintiff argues that he received annual statements as
recently as 2016 from certain funds that began with “Dear
Participant.” But the Arbitration Award confirmed that the plaintiff
was not covered under the CBA, and thus was not a participant or
beneficiary of the relevant funds. It appears that this
correspondence was sent to the plaintiff because certain amounts
contributed on behalf of the plaintiff prior to the Arbitration Award
were not refunded to the Employer defendants. See supra n.5. The
plaintiff is advised to pursue internal remedies at the funds
regarding any such amounts.

14

lies told at the arbitration hearing.

Fraud claims must be

brought within a period that is “the greater of six years from
the date the cause of action accrued or two years from the time
the plaintiff . . . discovered the fraud, or could with
reasonable diligence have discovered it.” N.Y. C.P.L.R.
§ 213(8).

The arbitration hearing was held on February 1, 2010,

and the plaintiff could have discovered the fraud through
reasonable diligence upon receiving a copy of the Arbitration
Award on March 13, 2010. 7 SAC ¶ 119. Accordingly, because the
plaintiff’s July 2016 complaint was filed after February 1,
2016, his fraud claim based on alleged conduct at the
arbitration hearing is time-barred. 8
The plaintiff asserts a violation of Labor Management
Relations Act, 29 U.S.C. § 185, (“LMRA”) alleging that the

7

To the extent that the plaintiff urges a vacatur of the
Arbitration Award, such a claim is time-barred “because under New York
law, an application to vacate or modify an arbitrator’s award must be
commenced within ninety days of receipt of the arbitrator’s
determination.” Odom v. Doar, No. 11-cv-152 (DLC), 2011 WL 2923889,
at *3 (S.D.N.Y. July 21, 2011) (citing N.Y. C.P.L.R. § 7511(a)),
aff’d, 497 F. App’x 88 (2d Cir. 2012).
8

The plaintiff also alleges an additional fraud claim against
the Employer defendants for allegedly lying in their October 15, 2008
EEOC position statement. But any such claim is time-barred because it
was brought after “the greater of six years from the date the cause of
action accrued or two years from the time the plaintiff . . .
discovered the fraud, or could with reasonable diligence have
discovered it.” N.Y. C.P.L.R. § 213(8). The plaintiff plainly
possessed the position statement as early as January 15, 2014, when he
quoted from it in a letter to the Secretary of Labor, and thus was
required to file his claim, at the latest, by January 15, 2016. See
SAC, Ex. 39 at 2. Because the plaintiff’s fraud claim was filed in
July 2016, it is time-barred.

15

Employer defendants breached the CBA and the Union defendants
breached the duty of fair representation by excluding him from
Local 32BJ and determining that he was not covered under the
CBA. See, e.g., SAC ¶ 49.

When a plaintiff alleges both a

breach of the CBA by his employer and a breach of the duty of
fair representation by a union, he has pleaded “a hybrid [LMRA]
§ 301/fair representation claim.” DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 165 (1983). Such claims are subject to
a six-month statute of limitations 9 that begins to run at “the
time he knew of the allegations that form the basis of his
complaint.” Carrion v. Enter. Assoc., Metal Trades Branch Local
Union 638, 227 F.3d 29, 32 (2d Cir. 2000) (per curiam). The
plaintiff alleges that he had attempted to join Local 32BJ since
he began work in 1990, that he began writing letters to Local
32BJ requesting to join the union as early as 2003, and that on
March 13, 2010, he received the Arbitration Award determining
that he was not covered under the relevant CBA.
55, 119; Ex. 12.

See SAC ¶¶ 24,

The plaintiff therefore “knew of the

9

The plaintiff cites to Auto Workers v. Hoosier Corp., 383 U.S.
696, 707 (1966), but that case applied Indiana’s six-year statute of
limitations for unwritten contracts and was a suit “brought by the
union itself rather than by an individual employee.” DelCostello, 462
U.S. at 162. The Supreme Court in DelCostello confirmed that the sixmonth statute of limitations in § 10(b) of the LMRA governs a suit
brought by an employee against an employer for breach of a CBA and a
union for an alleged breach of the duty of fair representation. Id.
at 172.

16

allegations that form the basis of his complaint,” at the very
latest, in March 2010.

See Carrion, 227 F.3d at 32.

Accordingly, the six-month statute of limitations had lapsed by
the time the plaintiff’s allegations in the current suit were
filed in July of 2016.

The plaintiff’s claims under 29 U.S.C.

§ 185 are therefore time-barred.
C.
The plaintiff brings a number of claims against the
Employer, Union, and Funds defendants under various provisions
of the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. § 1961, et seq. (“RICO”).

To establish a claim under

civil RICO, a plaintiff must show a pattern of racketeering
activity under RICO by pleading at least two predicate acts of
racketeering that are related and amount to or pose a threat of
continued criminal activity. H.J. Inc. v. Nw. Bell Tel. Co., 492
U.S. 229, 237-39 (1989).

The limitations period for actions

pursuant to civil RICO claims is four years. Agency Holding
Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987).
“A plaintiff’s [RICO] action accrues against a defendant for a
specific injury on the date that plaintiff discovers or should
have discovered that injury.” In re Merrill Lynch Ltd. P’ships
Litig., 154 F.3d 56, 58 (2d Cir. 1998). The statute of
limitations begins to run anew “each time a plaintiff discovers

17

or should have discovered a new and independent injury.”

Id. at

59.
Here, the plaintiff has failed to establish a pattern of
racketeering activity because he has not pleaded at least two
predicate acts of racketeering.

The plaintiff alleges only one

predicate RICO offense, claiming that the Union defendants
accepted a bribe from the Employer defendants to exclude the
plaintiff from membership into the union.

See SAC ¶ 58.

Accordingly, the plaintiff has failed to plead at least two
predicate acts of racketeering that are related and amount to or
pose a threat of continued criminal activity. H.J. Inc., 492
U.S. at 237-39.
The plaintiff’s claims under RICO are also barred by the
statute of limitations.

The plaintiff alleges that he learned

of the alleged bribe in August of 2010.

SAC ¶ 107.

The

plaintiff was therefore required to file his RICO claim within
four years, by August of 2014.

While the plaintiff contends

that the subsequent renewal of the side agreement barring
security guards from coverage under the CBA furthered the fraud,
he does not allege that any additional bribes were paid.
Moreover, renewal of the side agreement that simply confirmed
the longstanding position –- as confirmed by the Arbitration
Award –- that security guards were not covered under the CBA
would not constitute a “new and independent” injury sufficient
18

to renew the statute of limitations.

In re Merrill Lynch Ltd.

P’ships Litig., 154 F.3d at 59-60 (concluding that “continuing
efforts to conceal the initial fraud” were “not separate and
distinct fraudulent acts resulting in new and independent
injuries”).

The plaintiff’s RICO claims are time-barred.
D.

The plaintiff also brings a claim against the Employer and
Union defendants under 42 U.S.C. § 1981, alleging discrimination
on the basis of his Pakistani origin and his adherence to
Islam. 10
The statute of limitations for a § 1981 claim is three or
four years depending on whether the claim is brought under the
original statute or the statute’s 1991 amendments. See Andrews
v. Freemantlemedia N.A., Inc., No. 13-cv-5174 (NRB), 2014 WL
6686590, *5 (S.D.N.Y. Nov. 20, 2014) (citing Patterson v. McLean
Credit Union, 491 U.S. 164 (1989)).

10

Accrual “begins ‘when a

A § 1981 claim cannot prevail when it is based “solely on the
place or nation of [a plaintiff’s] origin, or [a plaintiff’s]
religion.” St. Francis College v. Al-Khazraji, 481 U.S. 604, 613
(1987). But § 1981 does prohibit “discrimination based on ‘ancestry
or ethnic characteristics.’” Vill. of Freeport v. Barrella, 814 F.3d
594, 605 (2d Cir. 2016) (quoting Saint Francis Coll. v. Al–Khazraji,
481 U.S. 604, 613 (1987)). Because the plaintiff’s § 1981 claims are
barred under the relevant statute of limitations, the Court does not
address the issue of whether the plaintiff’s claims of discrimination
allegedly based on his Pakistani heritage would otherwise be
cognizable under § 1981. But see Jafri v. Park Lane Hotel, No. 93-cv3947 (CSH), 1994 WL 514539, at *3 (S.D.N.Y. Sept. 21, 1994) (denying a
§ 1981 claim alleging discrimination on the basis of the plaintiff’s
Muslim faith and Pakistani national origin), aff’d, 62 F.3d 1412 (2d
Cir. 1995)(unpublished).

19

plaintiff knows or has reason to know of the injury that serves
as the basis of the action.’” Id. at *6.
The most recent incident the plaintiff identifies to form
the basis of his § 1981 claim against the Employer defendants
occurred in 2009. See ¶¶ 150-59.

Even applying the longer

statute of limitations of four years under § 1981, the
plaintiff’s § 1981 claims against the Employer defendants were
time-barred before the filing of his complaint in July of 2016.
While the plaintiff also alleges that the Employer defendants
continued to exclude him from the CBA in 2012 and 2016, he knew
he was excluded from coverage under the CBA at least as early as
March 2010, when he received a copy of the Arbitration Award,
and could have filed suit at any time thereafter.

This

allegation, therefore, does not extend the statute of
limitations.
As to the Union defendants, the only incident alleged by
the plaintiff that form the basis of a § 1981 claim is the
agreement with the Employer defendants to exclude security
guards from CBA coverage in 2008, of which the plaintiff
learned, at the latest, in March 2010. SAC ¶¶ 119, 159. Thus,
any § 1981 claim against the Union defendants is time-barred
because the plaintiff brought suit in July 2016, more than four
years after the plaintiff learned of this agreement.

20

Accordingly, the plaintiff’s § 1981 claims are timebarred. 11
D.
The plaintiff appears to argue that the statutes of
limitations on his claims should be equitably tolled or the
defendants should be equitably estopped from raising a statute
of limitations defense.
Equitable estoppel is an “extraordinary remedy.”

Pulver v.

Dougherty, 871 N.Y.S.2d 495, 496 (App. Div. 2009) (Slip Op.); E.
Midtown Plaza Hous. Co. v. City of New York, 631 N.Y.S.2d 38, 38
(App. Div. 1995).

Under New York law, the doctrine should be

“invoked sparingly and only under exceptional circumstances.”
Abercrombie v. Andrew Coll., 438 F. Supp. 2d 243, 265 (S.D.N.Y.

11

The plaintiff also initially alleged violations of 18 U.S.C.
§§ 1001, 1341, and New York Penal Law § 210, but now acknowledges that
these statutes do not provide a private right of action. See Docket
No. 100, Pl’s Mem. in Opp. to Union Def.’s Mot. to Dismiss at 28-29.
The plaintiff’s claims under New York Judiciary Law § 487 are
without merit because, by its terms, the statute only applies to
attorneys or counselors. The plaintiff does not allege that any of
the present defendants were acting as attorneys or counselors, and
“clients may not be held derivatively liable under the statute for the
misconduct of their counsel.” Polanco v. NCO Portfolio Mgmt., Inc.,
23 F. Supp. 3d 363, 376 (S.D.N.Y. 2014).
The plaintiff also alleges that after beginning his employment at
Owners Corp. in 1990, he did not receive overtime pay pursuant to the
Fair Labor Standards Act until he was put on the payroll in 2009. SAC
¶¶ 1, 4. To the extent that the plaintiff is seeking to recover for
overtime pay from 2009 or earlier, the statute of limitations for such
a claim expired by the time the plaintiff filed his claims in July
2016. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir.
1999) (noting that the FLSA generally provides for a two-year statute
of limitations, but allows a three-year limitations period for willful
violations).

21

2006) (quoting Matter of Gross v. New York City Health & Hosps.
Corp., 505 N.Y.S.2d 678, 679 (App. Div. 1986)).
“The doctrine of equitable estoppel applies where it would
be unjust to allow a defendant to assert a statute of
limitations defense.”

Zumpano v. Quinn, 849 N.E.2d 926, 929

(N.Y. 2006). This is the case where a plaintiff is “induced by
fraud, misrepresentations or deception to refrain from filing a
timely action.” Id. (quoting Simcuski v. Saeli, 377 N.E.2d 713,
716 (N.Y. 1978)) (internal quotation marks omitted). Such fraud,
misrepresentations, or deception must be affirmative and
specifically directed at preventing the plaintiff from bringing
suit; failure to disclose the basis for potential claims is not
enough, nor are broad statements to the community at large.

See

Doe v. Kolko, No. 06 Civ 2096, 2008 WL 4146199, at *4 (E.D.N.Y.
Sept. 5, 2008); see also Twersky v. Yeshiva Univ., 993 F. Supp.
2d 429, 442 (S.D.N.Y.), aff’d, 579 F. App’x 7 (2d Cir. 2014).
The federal doctrine of equitable tolling applies to the
plaintiff’s federal law claims. See Feliciano v. U.S. Bank Nat.
Ass’n, No. 13-cv-5555 (KBF), 2014 WL 2945798, at *6 (S.D.N.Y.
June 27, 2014) (citing Zerilli–Edelglass v. N.Y. City Transit
Auth., 333 F.3d 74, 80 (2d Cir. 2003)). “Equitable tolling is
available in ‘rare and exceptional circumstances,’ where the
court finds that ‘extraordinary circumstances’ prevented the
party from timely performing a required act, and that the party
22

‘acted with reasonable diligence throughout the period he sought
to toll.’” Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269,
286 (S.D.N.Y. 2011) (citations omitted); see also Gonzalez v.
J.P. Morgan Chase Bank, N.A., No. 16-cv-02611 (JGK), 2017 WL
122993, at *10 (S.D.N.Y. Jan. 12, 2017). “In order for
‘extraordinary circumstances’ to have prevented [the plaintiff]
from timely filing his complaint, the information he sought from
[the defendants] must have been necessary for that complaint to
have been legally sufficient.” Walker v. Jastremski, 430 F.3d
560, 564 (2d Cir. 2005).
The crux of the plaintiff’s argument is that he was unable
to file his complaint because the defendants would not respond
to his requests for information that he believed was necessary
to file his lawsuit.

But nearly all of the plaintiff’s claims

arise out of the dispute regarding his union membership status
and coverage under the CBA.

The plaintiff himself states that

he has been seeking membership into the union and coverage under
the CBA since he began his employment in 1990, and the
Arbitration Award in March of 2010 confirmed that the plaintiff
was not covered.

That certain defendants failed to respond to

the plaintiff’s requests for additional information regarding
CBA coverage does not warrant the application of equitable
estoppel because the plaintiff has been aware that he was not
covered under the CBA since, at the very latest, March of 2010.
23

See Twerksy, 993 F. Supp. 2d at 447-48 (declining to apply
equitable estoppel where the plaintiffs were plainly already
aware of their injuries).
Similarly, because the plaintiff has long been aware that
he was not a union member covered under the CBA, rare and
exceptional circumstances do not exist that would allow for the
application of the federal doctrine of equitable tolling. See
Walker, 430 F.3d at 564 (rejecting the argument that a plaintiff
was entitled to equitable tolling because of a delay in a state
court’s response to his document request when the plaintiff
“knew the facts supporting his claims”); Weslowski v. Zugibe, 14
F. Supp. 3d 295, 306-07 (S.D.N.Y. 2014) (rejecting a claim for
equitable tolling because the plaintiff’s allegation that the
defendants refused to turn over documents prior to the filing of
his complaint was “far from extraordinary” and the plaintiff did
not explain why the documents were necessary). While the Court
is mindful of the plaintiff’s unfortunate circumstances with
respect to his son’s illness, the plaintiff’s arguments to apply
the doctrine of equitable estoppel to his state law claims and
to equitably toll his federal claims are without merit.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the reasons explained
24

above, the defendants’ motions are granted. The Clerk is
directed to enter judgment dismissing the Second Amended
Complaint.

The Clerk is also directed to close all pending

motions and to close this case.
SO ORDERED.
Dated:

New York, New York
August 11, 2017

______________/s/_____________
John G. Koeltl
United States District Judge

25