author: ASPEN, District Judge:

text:
    Llewellyn HARRIS, Plaintiff, v. Richard J. ELROD, Sheriff of Cook County, Defendant.
    No. 84 C 1053.
    United States District Court, N.D. Illinois, E.D.
    Jan. 17, 1985.

      Llewellyn Harris, pro se.
    Karen J. Dimond, Asst. State’s Atty., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Llewellyn Harris (“Harris”) brings this pro se complaint pursuant to 42 U.S.C. § 1983 seeking damages and other relief against Cook County Sheriff Richard J. Elrod (“Elrod”). Before the Court are cross-motions for summary judgment.

The relevant facts in this case, as best can be determined from the muddled allegations of Harris’ complaint and the sparse and cryptic state court records submitted by Elrod, are as follows. On April 29, 1983, Chicago police arrested Harris and charged him with possession of a stolen motor vehicle. The police officers also issued two traffic citations against Harris for failure to signal, complaint number W 2-373-144, and failure to produce a valid driver’s license, complaint number W 2-373-145. The following day, the Cook County Department of Corrections (hereinafter referred to as the “County Jail”) assumed custody of Harris on the felony charge and another outstanding warrant from Oak Park, Illinois. After dismissal of the two felony charges, Harris was released from the County Jail on May 20, 1983. At the time of his release, charges on the traffic offenses remained unresolved.

On October 31, 1983, Harris was again taken into custody at the Cook County Jail on new charges of possession of a stolen vehicle. Although not clearly stated, Harris apparently asserts that the charges evolved out of a stop based on warrants stemming from the outstanding traffic warrants. When Harris was admitted into custody at the County Jail, he completed a form stating that he had no other outstanding criminal charges.

On December 7, 1983, the Circuit Court of Cook County issued a recognizance bond in the amount of $2000 on the traffic charges against Harris. A court date was set for January 26, 1984. On January 30, 1984, Harris filed this action complaining of the failure of jail officials to arrange for his appearance in traffic court for the January 26 hearing.

The gist of Harris’ complaint is that Elrod and the officials at the County Jail under his supervision systematically fail to arrange for those in their custody to appear in traffic court when the arrests underlying an inmate’s confinement arise from both felony and misdemeanor traffic charges. Harris asserts that when officials fail to arrange for a prisoner’s appearance at a traffic court hearing, a warrant issues for the prisoner’s arrest, which, after the prisoner’s release, results in his re-arrest and confinement. He maintains that this “recycling” of charges deprives the prisoner of liberty without due process. The facts in the record, however, do not support Harris’ legal contentions.

Harris was confined at the County Jail between April 30, 1983 and May 20, 1983. During that time, Harris alleges he did not appear in court to answer the two traffic charges that issued against him on April 29, 1983. He avers that:

Before leaving the county jail from the Sheriff’s custody, the plaintiffs two traffic tickets became warrants when he left the county jail on May 20, 1983 (verification of incarceration from department of corrections is proof) So the plaintiff left the county jail with warrants issued against his person unlawfully for his arrest because he was not arraigned and was in fact in custody of the sheriff.

(Rec.Doc. 14, Harris’ Motion for Summary Judgment). The records of the proceedings on the two traffic tickets show, however, that the first hearing on the charges was scheduled for June 13,1983, more than three weeks after Harris’ release from jail. When Harris failed to appear, the court rescheduled the hearing for July 15, 1983. When Harris again failed to appear at the rescheduled hearing, warrants dated July 15, 1983 were issued for his arrest. The record therefore shows that, contrary to his allegations, Harris was not in Elrod’s custody either at the time of the first hearing on the traffic charges or when the warrants issued that resulted in his arrest of October 31, 1983. Thus, the arrest and reincarceration of Harris cannot be attributed to any dereliction of duty on the part of jail officials.

Harris further complains of missed court dates on January 26, 1984 and Mar.ch 1, 1984. According to the affidavit of John Maul, a Lieutenant in the Cook County Department of Corrections, Harris failed to inform the jail of any pending court dates at the time of his admission on October 31, 1983. Maul also avers that, as an alternative, Harris could have arranged through his social worker at the jail to be taken to the court hearing on his traffic charges. Indeed, in his motion for summary judgment, Harris admits that his social worker arranged for the continuance of his January 26 hearing to March 1, 1984. Having once obtained such a continuance, Harris shows no reason why he could not have obtained a second continuance through his social worker. Moreover, Harris does not allege a deprivation of any constitutionally protected right as a result of his inability to appear at the March 1 hearing.

Accordingly, finding that there is no genuine issue as to any material fact and that Elrod is entitled to a judgment as a matter of law, the court denies Harris’ motion for summary judgment, grants Elrod’s motion for summary judgment, and dismisses this action.

It is so ordered.

      . The Court relies on the records on the assumption that they are correct even though at this time they are neither authenticated nor certified as required for admissibility into evidence under Rule 902 of the Federal Rules of Evidence. The Court grants defendant leave to remedy this defect within ten days and substitute the court records filed on December 13, 1984 with authenticated copies.

      . Although unclear, it appears from records filed by Elrod that Harris forfeited the bond on his traffic charges as a result of his failure to appear for hearing on the traffic violations on April 9, 1984. The forfeiture, however, cannot be found to be without due process. Once bond is set, it is defendant's responsibility to keep the clerk of court informed of his address. See IH.Rev.Stat.1983 ch. 38, § 110-12. If the court enters an order of bond forfeiture, the clerk sends notice to defendant at his last known address. See Ill.Rev.Stat.1983, ch. 38, § 110— 7(g). Defendant then has thirty days within which to appear or satisfy the court that appearance is impossible and without defendant’s fault before judgment is entered on the bond forfeiture. Id. These procedures sufficiently protected Harris’ due process interests. See Franklin v. Oregon, 662 F.2d 1337, 1345 (9th Cir.1981). Furthermore, judgment on Harris’ bond forfeiture was not entered until May 11, 1984, almost three weeks after Harris' release from jail.


source: Caselaw Access Project

author: MIHM, District Judge.

license: Public Domain

text:
    Walter MYERS, Plaintiff, v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, an insurance company doing business in Illinois, Defendant.
    No. 84-1125.
    United States District Court, C.D. Illinois, Peoria Division.
    Jan. 18, 1985.
    James R. Carter, Peoria, 111., for plaintiff.
    Frank L. Schneider, Timothy J. Reagan, Chicago, 111., Rex K. Linder, Peoria, 111., for defendant.
   MEMORANDUM OPINION

MIHM, District Judge.

The Plaintiff, Walter Myers, bought a policy from the Defendant, Merrimack Mutual Fire Insurance Company (Merrimack) which insured premises which he owned at 127 South Prairie, Lacón, Illinois against loss from multiple perils, including fire. For a 16-month period, from November of 1981 until April, 1983, the apartment building stood vacant, unoccupied, and unsecured while Plaintiff allegedly undertook extensive renovation of the premises. On April 3, 1983, a fire caused substantial damage to the apartment building in excess of the policy limit of $45,000. Merrimack, following an investigation of the loss and its consideration of a claim for recovery made by Walter Myers and his wife, Helen, denied any and all liability under the terms and conditions of the insurance contract.

This denial of liability was based on the following provisions of the contract:

“SPECIAL MULTI-PERIL POLICY CONDITIONS AND DEFINITIONS.
GENERAL CONDITIONS
The following conditions apply to Section I and II except as otherwise indicated. Additional Conditions or modifications of the following Conditions may appear in the specific coverage sections.
4. Concealment or Fraud. This policy is void if any insured has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.
CONDITIONS APPLICABLE TO SECTION I.
Hs sfc £ =k sk sk
15. Suit. No suit shall be brought on this policy unless the insured has complied with all the policy provisions____
17. Vacancy, Unoccupancy and Increase of Hazard.
(a) This company shall not be liable for loss occurring while a described building, whether intended for occupancy by owner or tenant is vacant beyond a period of sixty (60) consecutive days. ‘Vacant’ or ‘Vacancy’ means containing no contents pertaining to operations or activities customary to occupancy of the building, but a building in process of construction shall not be deemed vacant.
(b) Permission is granted for unoccupancy.
(c) Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring while the hazard is increased by any means within the control or knowledge of the insured.”

Following the denial of Plaintiff’s claim, he filed suit in this Court seeking reimbursement of his fire loss to the limit of the policy plus $4,600 which he expended following the fire to have the building shell demolished and removed, attorney’s fees of $15,000, costs, and penalties of $5,000.

This matter is currently before the Court on cross motions for summary judgment.

Both parties assert that there are no genuine disputed issues of material fact and each claims to be entitled to judgment as a matter of law. This case presents a problem in contract construction, requiring a determination of whether there is ambiguity in the contract language and whether there has been a forfeiture because of concealment or fraud in the statement of the claim. Broadly stated, the issue raised by the motions is whether, as a matter of law, Plaintiff is entitled to coverage under the policy.

POSITION OF THE PLAINTIFF

Mr. Myers argues that he has coverage under the policy despite the period of vacancy prohibited by its terms because the Court must find that he falls within the “construction” exception of paragraph 17(a). The basis for this argument is his claim that the contract language is ambiguous and that the law requires ambiguity to be resolved in favor of the insured and against the insurer who prepared the policy. Plaintiff arrives at his claim of ambiguity by way of a two-pronged argument. He claims first that paragraph 17(a) of the contract states that the Company will not pay on the policy if the building is vacant for a period in excess of 60 days prior to the fire which causes the loss, and then excepts from that rule premises which are under “construction.” This is done, he says, without provision of a definition for “construction” or any indication of whether “construction” includes “reconstruction.” His second prong is 17(b) which states, in its entirety, “Permission is granted for unoccupaney.” Plaintiff believes that 17(b) is ambiguous on its face and should be interpreted to mean that he can grant permission to himself for unoccupancy of the premises. He claims that subparagraphs (a) and (b) taken together constitute clear and marked ambiguity in the contract language.

Moving to count II of his complaint, Plaintiff asserts that he spent $4,600 to have the building remains demolished and removed. He asks for reimbursement of that amount under paragraph 5 of the policy, entitled “Debris Removal.” Mr. Myers maintains that this payment should be in addition to reimbursement of the full coverage for his loss from the fire. Citing chapter 73, Illinois Revised Statutes, § 155, and maintaining that Defendant’s delay in settling is vexatious and unreasonable, Plaintiff claims entitlement to attorney’s fees, costs, and $5,000 in penalties.

Responding to Defendant’s cross motion for summary judgment, Plaintiff denies active concealment or fraud. He says he believed that he was undertaking policy-authorized construction during a policy-authorized period of unoccupancy and that, therefore, the income-producing nature of the property never changed. He denies that there were misstatements or misrepresentations in the statement of claim for loss.

For all of the foregoing reasons, Plaintiff prays the Court to deny Defendant’s motion for summary judgment and to grant that which he has presented.

POSITION OF THE DEFENDANT

Merrimack sets out that the building was vacant in excess of 60 days prior to the fire, that the actual period of vacancy and unoccupancy was of such duration that it constituted an increase of hazard within the control and knowledge of the Plaintiff, and that Plaintiff made material misrepresentations of fact in his sworn statement in support of loss. For these reasons, Defendant claims that the conditions of coverage were not met by Walter Myers and, therefore, he is entitled to no recovery under the policy.

Defendant denies all of the Plaintiff’s claims which would, presumably, entitle him to the benefit of the exceptions in the-contract terms. Asserting that the meaning of the word “construction” is plain and clear and has been explicated in case law, Defendant maintains there is no ambiguity in the relevant language. The Company denies that the term “construction” comprehends “repairs,” “renovation,” or “reconstruction,” on which Plaintiff premises his argument. . Defendant notes that the rule for interpretation of insurance contracts is that they should be construed as a whole and that “unambiguous language must be given its ordinary and common meaning without further construction.” Merrimack cautions that it is only when the Court finds ambiguity in the language that the contract should be construed in favor of the insured and against the insurer. Even when ambiguity is found, the Court’s construction of the language must be reasonable.

Defendant claims that Plaintiff’s argument with respect to paragraph 17(b) is irrelevant since the gist of the action is based on a claim of vacancy and the unoccupancy is only cited in connection with its duration and the resulting lack of security to show increase of hazard.

Defendant maintains that even if the Court were to find that the term “construction” included “reconstruction,” “repairs,” or “renovation,” there is no evidence that the Plaintiff was doing any work on the premises prior to the fire. Merrimack maintains, that Plaintiff’s own sworn testimony establishes that, during the entire 16-month period of vacancy and unoccupancy, he did virtually no work on the house.

In answer to Plaintiff’s count II, Defendant does not dispute that the actual loss on the fire exceeded the policy limits. They, therefore, argue that Plaintiff is not entitled to an additional sum for debris removal. Moreover, since it denies that its delay was vexatious or unreasonable, Defendant urges the Court to deny Plaintiff’s demand for attorney’s fees, costs, and penalties. Defendant maintains that the law permits no attorney’s fees unless there is an unjustifiable delay or refusal to pay a just claim, neither of which alternative is admitted here. Nor, Defendant argues, should attorney’s fees be granted where there is a genuine dispute.

For the foregoing reasons, Defendant prays the Court to deny Plaintiff’s motion for summary judgment and to grant that presented by the insurance company.

DECISION

It is undisputed that the premises were continually vacant and unoccupied from November, 1981, when the last tenant moved out, until the fire on April 3,1983, a period of more than 16 consecutive months. During this time, the apartments produced no rental income. The electricity and water were cut off for the entire period. Plaintiff made no effort to change the locks after the last tenants left, there were no locks on a basement door nor on the front door to the building, and the front porch door lock was inoperative. Plaintiff neither attempted to obtain security services for the premises on his own, nor gave the insurance company an opportunity to protect the premises by notifying them of the protracted period of vacancy and unoccupancy.

These facts would clearly support both Defendant’s assertion that the policy conditions have been violated and its consequent refusal to pay. Plaintiff can only prevail by showing, either directly or by virtue of a favorable statutory construction by this Court, that he is entitled to the benefit of the exception for “a building in process of construction.”

To this end, Plaintiff contends that the term “building in process of construction” is ambiguous and attempts to entice the Court down a twisted path to fall prey to a confusion of “construction” synonyms. This the Court declines to do.

Plaintiff began his argument by asserting that the Court should follow the direction of the Illinois Supreme Court in Canadian Radium, Corp. v. Ind. Ins. Co., 411 Ill. 325, 104 N.E.2d 250, and use the dictionary to establish the “plain, ordinary and popular sense” of the term in issue. His resort to Webster’s Third New International Dictionary yielded the following definition for “construction”: “The act of putting parts together to form a complete integrated object.” That source then defined the word “construct” as “to form, make or create by combining parts or elements.” The Court’s own dictionary, Webster’s New International Dictionary, Second Edition, Unabridged, defined “construction” as:

“1. Process or art of constructing; act of building; erection; act of devising and forming; fabrication; composition; also, a thing constructed; a structure.”

The same dictionary showed “construct” as meaning:

“2. To put together the constituent parts of (something) in their proper place and order; to build; form; make; as to construct an edifice.”

In drawing its own conclusion about the plain meaning of the term construction as derived from these definitions, the Court is persuaded like the Georgia Appellate Court in Travelers Indemnity Co. v. Wilkes County, 102 Ga.App. 362, 116 S.E.2d 314, 317 (1960) that:

“When used in this sense the word ‘construction’ imports the building or erection of something which theretofore did not exist; the creation of something new rather than the repair or improvement of something already existing.”

Having satisfied itself of the plain meaning of the term “construction,” the Court is disinclined to accept Plaintiff’s invitation to embark on the same procedure with the word “reconstruction,” which is to be found nowhere in the relevant language of the policy. The Court is forced to conclude that the only ambiguity in the interpretation of this subsection of paragraph 17 exists in the mind of the Plaintiff.

It, therefore, appears that to the extent any work was being done on the insured premises by Walter Myers, it was not construction. It may have been repairs, remodeling or renovation. Plaintiff is not entitled to the benefit of the exception in paragraph 17(a) and the protracted period of vacancy violated one of the conditions of the policy. It is unnecessary for the Court to determine what meaning should be given to 17(b) since the unoccupancy, itself, is not at issue. However, the duration of the vacancy and the unoccupancy, coupled with the total lack of security about the premises, does create an increase in hazard within the control or knowledge of the insured, as contemplated in paragraph 17(c).

Even though what constitutes an increase of hazard is normally a question of fact to be decided by the jury, the Court feels that the duration of the vacancy and the circumstances attending it establish increased hazard as a matter of law. Moreover, since it is undisputed that the premises were both vacant and unoccupied for the 16-month period preceding the fire, it is unnecessary for the Court to find a vacancy as a matter of law.

Turning, now, to the issue of concealment or fraud in the sworn statement in proof of loss provided by the Myers to sustain their claim for settlement under the policy, the Court is not persuaded that Plaintiff’s characterization of the premises as “income property” is so clearly a deliberate misrepresentation as to be concealment or fraud. It is, however, probable that the statement that there had been no change of use, occupancy, or exposure of the property since the purchase of the policy was a clear and intentional misrepresentation of the facts as they existed. For this reason, too, the Court finds that this policy is void under paragraph 4, as set out above, and the insured has forfeited his coverage.

In light of the foregoing findings that material conditions of the policy have been breached or violated by the insured and that coverage has thereby been lost, it follows that Plaintiff is not entitled to receive reimbursement for his expenses incurred in debris removal nor is he entitled to attorney’s fees, costs, or penalties.

It is, therefore, ordered that, with respect to both count I and count II, Plaintiff’s motion for summary judgment is hereby DENIED and Defendant’s motion for summary judgment is hereby GRANTED.


author: SWEET, District Judge.

text:
    Kenneth BROADAWAY, Jacqueline Cooper and David Sauer, Plaintiffs, v. CITY OF NEW YORK, New York City Police Department, Robert McGuire, Commissioner, Police Officers “John”, first names being unknown, McCarthy, Karas, Gallo, McCullough, Doyle, Maggio and the Warwick Hotel, Defendants.
    No. 83 Civ. 3119 (RWS).
    United States District Court, S.D. New York.
    Jan. 18, 1985.

      Cooper & McElligott, Deer Park, for plaintiffs; Bryan P. Kujawski, Deer Park, N.Y., of counsel.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of City of N.Y., New York City, for defendants; Jonathan Weinberger, New York City, of counsel.
   OPINION

SWEET, District Judge.

Plaintiffs Kenneth Broadaway (“Broadaway”) and David Sauer (“Sauer”) have moved for partial summary judgment on their claim for false arrest against the City of New York, the New York City Police Department (collectively “the City”), Robert McGuire, Commissioner (the “Commissioner”), Police Officers “JOHN”, first names being unknown, McCarthy (“McCarthy”), Karas (“Karas”), Gallo (“Gallo”), McCullough (“McCullough”), Doyle (“Doyle”), Maggio (“Maggio”) (collectively “the Officers”). The Warwick Hotel (the “Hotel”) is also a defendant but not a subject of the motion. Upon the findings and conclusions and conditions set forth below, the motion will be granted with leave granted the defendants to move to vacate within thirty (30) days during which time the entry of partial summary judgment will be stayed.

This action demonstrates that “a policeman’s lot is not a happy one” when confronted with a difficult on-the-spot decision. Here, unfortunately, the undisputed facts establish that the wrong decision was reached. At the outset, however, it must be noted that in the absence of any pattern or practice, or evidence of any personal involvement by the Commissioner, the partial summary judgment can be entered only against the Officers and not the City or the Commissioner.

The Facts

On August 27, 1982 Jacqueline Cooper,' Lois Sanders, Broadaway and Sauer checked into the Hotel in Manhattan without prior reservations. They filled out registration cards. Lois Sanders used the name Ann Lois Pausian in filling out her card and submitted an American Express card bearing the same name. The clerk took the card, and the four registrants went upstairs to the suite which had been assigned, Rooms 1606-7-8.

The clerk ascertained from American Express that the card was counterfeit. American Express requested that the police be notified, and they were. Karas and McCarthy responded, and Karas spoke to an American Express representative. They were advised by the Hotel employees that the four guests had all signed into the Hotel using the same credit card. Karas and McCarthy went to the suite.

Upon entering Karas stated that there was a problem with the card and asked Lois Sanders (“Pausian”) where the forged card had been obtained. Sauer and Broad-away were advised that they were in the suite illegally and that the credit card was forged. Neither reacted to any of these statements or the use of the name Pausian. Lois Sanders produced the card.

McCarthy noted that Sauer and Broadaway were “suspiciously calm.” Karas noted their statement that they were in the suite for a business purpose and that their answers were evasive. As Karas put it:

The fact that they didn’t respond led me to believe at this point that they were acting in concert, they were all knowingly in that room together, so I — based on that information, they were placed under arrest.

Karas, p. 17 deposition.

After the arrest, Sauer and Broadaway listed their addresses as those given at the time of registration. Lois Sanders was charged and pleaded guilty to forgery in the third degree. Sauer and Broadaway were booked and charged with theft of services, criminal trespass and criminal possession of a forged instrument and after more than twenty-four hours released and the charges dropped.

Conclusions

When there has been an arrest and imprisonment without a warrant, the presumption is that the arrest and imprisonment are unlawful. The defendant has the burden of proving legal justification as an affirmative defense. Veras v. Truth Verification Corp., 87 A.D.2d 381, 451 N.Y.S.2d 761 (App.Div. 1st Dept.1982); Smith v. County of Nassau, 34 N.Y.2d 18, 355 N.Y.S.2d 349, 311 N.E.2d 489 (Ct.App. 1974). Justification is established by showing probable cause, and where the facts leading up to the arrest are undisputed, the existence of probable cause to make the arrest is an issue for the court to decide as a matter of law. Veras, supra; Toenis v. Hommel, 59 A.D.2d 1000, 399 N.Y.S.2d 723 (App.Div. 3d Dept.1977).

There was no probable cause for the arrest on these facts. The presence of Sauer and Broadaway in the room and their answers and their failure to react to the use of the name Pausian, even assuming the inference that the name was known by them to be false, fails to establish the vital link, reasonable grounds to believe they knew the credit card to be forged. See United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); New York Penal Law § 165.15(1). If there is something more to Officers’ suspicions, it has not been stated and what has been stated is not enough.

The Officers cite Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) to defeat the motion for partial summary judgment stating that despite a holding that no probable cause existed, “there would remain the related triable issue of whether the individual defendants are entitled to a qualified immunity because they neither knew nor should have known that their actions would violate the rights of another” citing Harlow. (Defendants’ memorandum of law, p. 5-6). While a plunge into the thicket of qualified immunity is apt to be painful, as exemplified by Harlow, in view of the Officers’ position it is necessary. Because a discretionary function is here involved, Harlow appears applicable, and the opinion notes in footnote 30 its relevance to state officials challenged in § 1983 actions.

However, in my view the totality of Harlow, including its expression of the desirability of disposition of these cases by summary judgment, requires the granting of partial summary judgment in this instance. To accommodate the posture of this action, which presents the other side of the Harlow coin, government officials performing discretionary functions are not shielded from liability for civil damages insofar as their conduct violates established statutory or constitutional rights of which a reasonable person would have known. To hold otherwise would be to conclude that every police officer making a warrantless arrest without probable cause could be held liable only if malice were demonstrated. Harlow and good faith do not extend that far. Of course, there is no fact present in this record to establish anything more than that the Officers erred in good faith in violating the constitutional rights of Broadaway and Sauer.

Finally, the Officers seek to defeat the motion by citing rule 56(f) and requesting additional discovery, particularly the testimony of the Warwick employees with whom they spoke on the night of the arrest. In view of the portions of the depositions of the parties which have been reviewed, it seems unlikely that additional evidence will be forthcoming which will alter the findings already set forth, but clearly the Officers must be afforded that opportunity. The entry of partial summary judgment will be stayed for thirty (30) days from the date hereof to permit additional discovery, and within that period any additional evidence may be presented by way of a motion to amend these findings and conclusions.

IT IS SO ORDERED.

      . W.S. Gilbert, The Pirates of Penzance, 1879.

      . The objection by defense counsel that the answer is unresponsive is overruled.


text:
    TEXAS EASTERN TRANSMISSION CORPORATION, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
    No. 83 Civ. 3417 (RWS).
    United States District Court, S.D. New York.
    Jan. 19, 1985.
    Mendes & Mount, New York City, for plaintiff; Daniel H. Murphy, II, New York City, of counsel.
    Solin & Breindel, P.C., New York City, for defendant; Mark L. Weyman, New York City, of counsel.
   OPINION

SWEET, District Judge.

This is a renewed motion for summary judgment, brought with respect to those causes of action that survived this court’s opinion of May 15, 1984. The motion is granted, and the complaint is dismissed.

Prior Proceedings

Plaintiff Texas Eastern Transmission Corporation (“TETCO”) filed the complaint in this action against General Electric Company (“GE”) on May 5, 1983. Diversity jurisdiction was alleged. TETCO filed an amended complaint, and GE brought a motion to dismiss that was treated as a motion for summary judgment pursuant to Fed.R. Civ.P. 12(b). The resulting opinion of May 15, 1984 dismissed TETCO’s first, second, fifth, sixth, seventh, and eighth causes of action for failure to state a claim. The third and fourth causes of action, which were deemed to allege “negligent performance of a service contract,” survived the initial motion. GE has now renewed the motion, alleging that the third and fourth claims are barred both by the applicable statute of limitations and the warranty limitations in the service contract.

Facts

Facts sufficient to resolve this motion are not in dispute and are set forth in the May 15, 1984 opinion' and will be summarized here. GE is in the business of designing, manufacturing and selling gas turbines. In the early 1960s, TETCO purchased two 8000 HP, MS-3002 gas turbines designed and manufactured by GE for generating purposes.

TETCO removed one of the turbines for inspection and overhaul during the period August 14, 1970 through August 30, 1970 and sent it to GE’s repair facilities for cleaning and inspection. From May 30, 1972 to June 21,1972 the other turbine was sent to GE’s Houston repair facility.

During 1970, GE became aware of the problem of dirt accumulation in turbines similar to those purchased by TETCO, specifically that dirt could become trapped between the Bucket platforms in the seal pin groove and in October 1970, GE issued a Technical Information Letter (“TIL”) concerning the problem to many of its customers, but not to TETCO. GE also sent TILs to owners of the Turbines in 1973 and 1976. TETCO asserts that it did not receive the 1973 or 1976 TILs and did not have a timely or adequate warning of the information contained in the TILs. GE contends to the contrary.

In January 1982, both Tetco turbines failed. GE and TETCO are in agreement on the above stated facts except for the state of TETCO’s knowledge about the information contained in the TILs and the nature of the damage resulting from the Buckets’ failure.

Discussion

In this diversity action New York choice of law rules. Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975); Klaxton Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). New York’s “borrowing statute,” CPLR § 202, states:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued ...

If the causes of action alleged are barred by the applicable New York statute of limitations, the case must be dismissed, even if the causes of action would not be barred elsewhere.

Both TETCO and GE rely upon Sears, Roebuck & Co. v. Enco Assoc., Inc., 43 N.Y.2d 389, 401 N.Y.S.2d 767, 372 N.E.2d 555 (Ct.App.1977), a recent Court of Appeals analysis of statutes of limitations in contract based negligence actions. Sears was an action against architects for negligence in the performance of a contract for the construction of a parking ramp. The contract was formed in 1967 between Sears and Eneo, the architects. Work was commenced in 1967 and completed in 1968. In May 1970 cracks appeared in the structure, and in 1972 the action was commenced. The court held that, where there was no claim for personal injury, application of New York’s contract statute of limitations was appropriate, because the obligation of the defendants, whether characterized in the complaint as tort or contract, arose out of the contractual relationship between the parties. “Absent the contract between them, no services would have been performed and thus there would be no claims.” 401 N.Y.S.2d 770-71, 372 N.E.2d 558. The Court therefore permitted the plaintiff’s contract based claims to continue, since they were commenced within the six year contract statutory period. See Video Corp. v. Frederick Flatto Assoc., 58 N.Y.2d 1026, 462 N.Y.S.2d 439, 448 N.E.2d 1350 (Ct.App.1983) (“An action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six year contract Statute of Limitations.”)

TETCO concedes that the contract statute of limitations bars this action, yet argues that in Sears the Court of Appeals held both the tort and contract statutes of limitation applicable. The Sears Court did state that “[i]n effect we are here' applying both our State’s six-year and its three-year statutes, in combination; the claim is not barred because the six year statute is applicable, but damages that may be recovered are limited because the three year statute is also applicable.” Sears, supra, at 401 N.Y.S.2d 771-72, 372 N.E.2d 559. The Court held that where the case was founded upon a contractual relationship, an action for negligent performance brought within a three year period could recover either tort or contract damages while an action brought subsequent to the tolling of the tort statutory period yet prior to the running of the contract period could recover only contract damages.

Even though the Court applied both the tort and contract statutory limits, however, the Court began to run the tort statute of limitations from the date of contract, not the date of injury. Consequently, when the action was commenced in 1972, the tort statute barred tort recovery. Had the Court of Appeals run the tort statute of limitations from the date of injury in 1970, tort damages would have been available in an action commenced in 1972.

Applied to the facts of this case, the time to bring the actions expired in 1976 and 1978, six years subsequent to formation of the contracts. TETCO argues, relying on Victorson v. Bock Laundry Machine Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (Ct.App.1975), that because the Sears Court applied both the tort and contract statutes of limitations, the tort statute should not begin to run until the date of injury, 1982. TETCO’s claim does not square with the court’s handling of the dual running of the tort and contract statutes of limitations in Sears, as just explained. Moreover, in Victorson the Court of Appeals held only that in strict liability cases the statute would run form the date Of injury. The Court cautioned that both the duration of the statute of limitations and its date of commencement would differ according to the theory underlying the particular case. “What we say here, therefore, should not be understood as in any way referring to the liability of a manufacturer of a defective product under familiar but different doctrines. [I]t may be open to a particular plaintiff to base his case on contract liability or negligence or strict liability, or on some combination thereof... On principle, there having been no prior relationship between the parties in strict products liability cases, the cause of action if any there be, should accrue at the time the injury is sustained.” Id.

In Sears, as well as in the facts before the court, on the other hand, there was a prior relationship between the parties. The Sears court consequently ran the tort statute of limitations from 1967, the year of contract, not 1970, the year of injury, and found that the tort claim was barred. The tort statute of limitation in this case began to run in 1970 and 1972 respectively, and expired in 1973 and 1975, before this action was commenced.

Conclusion

Because the New York statute of limitations bars this action, it is dismissed, and the court need not reach the issue of warranty limitations contained in the contract. The clerk is directed to enter judgment dismissing the case.

IT IS SO ORDERED.


author: PLATT, District Judge.

text:
    Douglas W. CHAMBERS, Plaintiff, v. EUROPEAN AMERICAN BANK AND TRUST CO.; European American Banking Corporation; the Incentive Savings Plan Committee of European American Bank and Trust Co. and European American Banking Corp.; the Employee Benefits Committee of European American Banking Corp.; the Pension Plan Committee of European American Bank and Trust Company and European American Banking Corp.; and King F. Lowe, Harry E. Ekblom, Francis Russo, Jr., and Donald A. Crowley, individually and as agents of European American Bank and Trust Co., Defendants.
    No. 84 CV 285.
    United States District Court, E.D. New York.
    Jan. 21, 1985.

      Pelletreau & Pelletreau by John J. Hart, Patchogue, N.Y., for plaintiff.
    Proskauer, Rose, Goetz & Mendelsohn by Michael A. Cardozo, New York City, for defendants.
   MEMORANDUM AND ORDER

PLATT, District Judge.

Plaintiff filed the present suit against his former employer, European American Bank and Trust and European American Bank Corporation, collectively known as “EAB,” alleging that EAB, by discharging him, had violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, that EAB, by withholding from him some $4,800 of EAB contributions to his EAB Incentive Savings Plan (“ISp”) account> had violated certain procedural requirements of the Employment Retirement Security Act of 1974 (“ERISA”), and that EAB, both by discharging him and withholding this disputed amount, had violated several aspects of New York State contract and tort law. In response, defendant EAB has moved for summary judgment on the grounds that plaintiff’s ADEA claim was untimely filed and that he failed to exhaust his internal review remedies before bringing his alleged ERISA violation to a federal court. Defendant EAB has also moved for summary judgment against all plaintiff’s State contract and tort claims.

As will be set forth, this Court finds that summary judgment may be granted in favor of the defendant concerning plaintiff’s claims resting on federal law. Having decided that there are no justiciable federal claims, this Court has no jurisdiction to decide plaintiff’s pendent State law claims and plaintiff’s claim is hereby dismissed without prejudice to any State claims he may have.

FACTS

In February of 1977, plaintiff, a resident of New York, was hired by EAB following discussions with EAB’s Executive Vice President, H. Newman Marsh. Plaintiff’s Affidavit in Opposition to Defendant’s Motion, ¶¶ 6, 7 [hereinafter cited as Pl.Aff.]; Transcript of Plaintiff’s Deposition, Defendant’s Ex. 2, pp. 50-57 [hereinafter cited as Pl.Dep.].

EAB is a commercial bank which has its headquarters in New York and over 90 branches in the New York Metropolitan Area. PL Amended Complaint ¶¶ 6, 7 [hereinafter cited as Comp.]; Mykolyn Aff., pp. 2-3.

At the time he started work at EAB, plaintiff was 56 years old, his birthdate being May 7, 1920. PL Attny. Hart Aff.Ex. I.

Plaintiff claims that the reason he was “induced” to leave his former position at the Bank of New York to join EAB was because Mr. Marsh had told him he would be eligible for EAB’s pension plan if he were to stay on until the age of 65, whereas at the Bank of New York he had no such possibility of attaining a pension. Pl.Aff. ¶¶ 7, 8, 11. Before he went to work at EAB, plaintiff states that he “did not ask for any written materials on employee benefits” because he considered his conversations with Mr. Marsh to be a “gentlemen’s agreement” and “relied on his representation.” Id. ¶ 10.

Moreover, both before plaintiff started work at EAB and after having begun work there, he admits that he never received any written employment contract. Pl.Dep. pp. 76, 83-84. Plaintiff admits that he was told by Mr. Marsh that his first six months were to be on a trial basis and that a statement to this effect appeared on the employment application which he signed. Pl.Aff. if 11.

In plaintiff’s brief, he argues that he believed after this trial period was over, his employment would be secure and that he could not be dismissed without cause. Indeed, it appears that plaintiff was warmly welcomed at EAB, and while there, received excellent job evaluations, which in all likelihood explains his “shock” when he was let go apparently without cause. PI. Aff-Exs. A, D, E, F-l-4; Pl.Dep. pp. 123-28.

In sum, despite the absence of any written assurances or a written employment contract, plaintiff believed he had such a contract and expected he could work until 65 or later when he would be eligible for a pension. Pl.Aff. 1112; Pl.Dep. pp. 89-99.

In his position at EAB in charge of services to savings and thrift institutions, plaintiff was responsible for supervising and hiring employees in his section. PI. Dep. pp. 104-07. In his deposition, he stated that he was aware that he could not discriminate on the basis of age in his hiring practices and that he had gained this awareness from his readings of common business periodicals, which had given age discrimination “so much publicity.” Id. at 115. However, plaintiff denied in his deposition that he had ever seen any of the ADEA posters concerning the illegality of age discrimination which EAB was required by law to post in areas frequented by employees, although he admits to having passed through these areas where the posters were allegedly hanging. Id. at 113-14, 117-21, 245-48.

Defendant submitted an affidavit by its Affirmative Action Officer stating that it has been EAB’s policy since 1976 to have these posters hung in places like the personnel offices, the employee cafeterias, and the employee coffee rooms, and further, that since 1977, EAB’s auditing department had checked to see that these ADEA posters were up as part of the inspection it conducts of each branch office every 12 to 18 months. Mykolyn Aff. pp. 1-3; Def.Ex. 5 (copies of audits conducted from 1976-Aug. 1982 showing that ADEA posters, among others, were displayed).

Plaintiff submitted an affidavit by a former employee of EAB who had also been plaintiff’s secretary, stating that when she left EAB in May of 1983, she had never seen such posters. Cruz Aff. p. 2.

On August 2, 1982, plaintiff’s supervisor, Frank Russo, told him that because of the distressed economic conditions in the savings and thrift sector, EAB was curtailing its marketing efforts in this area and as a consequence, his position was being eliminated. Pl.Aff. 1119; Pl.Dep. pp. 123-28. Plaintiff contends that manpower in his division was subsequently not curtailed and further claims that his job responsibilities were assumed by two men who were 40 years old or younger. Pl.Aff. 111124, 25. It might be noted, however, that according to Mr. Russo’s affidavit, submitted with plaintiff’s attorney Hart’s affidavit as Exhibit H-l, it appears that plaintiff’s section had been scaled down because now it only has one person soliciting business whereas before it had two.

On August 2 and again on August 3, 1982, plaintiff was told that although he had no further duties at EAB, he would receive his full salary and be eligible for employee benefits for the following nine months, the final date for his compensation and benefits would be April 30, 1983. PI. Dep. pp. 130-38. These discussions were confirmed by Mr. Crowley, a Senior Vice President at EAB. Comp.Ex. C-l, C-2. Plaintiff asserts that because of his financial responsibilities, he “accepted Russo’s terms under duress and threat of loss of salary and benefits.” Pl.Aff. II20. He further asserts that Mr. Crowley told him that if he were to go to work for a competitor of EAB, he would jeopardize his salary and benefit arrangement. Pl.Aff. 1121; Pl.Dep. pp. 161-62. As a consequence of this conversation, plaintiff further asserts that he “did nothing during this period [i.e., August 1982-April 1983] because I was afraid of loss of salary and benefits.” Pl.Aff. 1121. It may be noted here, however, that plaintiff admitted that he never discussed with Mr. Crowley what would happen if he were to sue the Bank. Pl.Dep. p. 162.

Before plaintiff left EAB, he claims that Mr. Crowley assured him that he would receive all of the Bank’s contributions to his Incentive Savings Plan (“ISP”) account. PLAff. 1121; Pl.Dep. p. 127-28. However, on March 7, 1983, EAB notified him that his right to the Bank’s contributions to his savings made after January 1980 had not vested; thus, he was entitled to receive and did receive $31,757.38 consisting of all his savings and the Bank’s contributions made to his account before 1980, but he was not entitled to the $4,852.34 worth of EAB contributions made after 1980. Comp.Ex. D-2. By a letter, dated October 6, 1983, plaintiff’s attorney returned EAB’s check for $31,757.38. Id. Ex.F.

Although the general rule concerning the ISP was that the right to receive EAB contributions would not vest until three years after EAB had made them, plaintiff believes that he falls within one of the EAB’s stated exceptions which permit 100% vesting of rights to the Bank’s contributions when an employee is terminated as a result of a “reduction in force, or any other involuntary termination without cause.” Comp.Ex. D-l. In a letter, dated May 3, 1983, following up his phone inquiries, plaintiff asked Mr. Timoney, a manager of Employee Benefits at EAB, to explain why his discharge did not fall within this stated exception. Comp.Ex. E-l; Def.Ex. 9. Plaintiff repeated this request for an explanation by letters, dated June 7 and July 3 of 1983. Comp.Ex. E-2, E-3; Def. Exs. 10, 11.

Mr. Timoney claims that he responded to plaintiffs request by phone “on several occasions” in order to explain to him .why he was not eligible for the EAB contributions made after 1980 and told him he could appeal the denial of his claim to the Employee Benefits Committee. Timoney Aff. If 8. Mr. Timoney also claims that a letter plaintiff received in May of 1984 essentially reiterates and confirms in writing the explanations he had given to plaintiff over the phone. Id. ¶ 11.

This letter stated that the broad language regarding the 100% vesting exception had been interpreted by the Employee Benefits Committee to apply only to two specific instances of employee discharge: one instance would occur when the Bank “initiates a specific program which results in an individual’s transfer to a nonpartieipating affiliate or Shareholder Bank”; the other instance would arise “when the Company \i.e., EAB], through a specific program of organizational restructuring or budgetary control, eliminates a number of positions.” Def.Ex. 12; Pl.Aff.Ex. H-4. The letter concluded that since only plaintiff’s position was eliminated and that he was not one of a “number of positions” being eliminated, he did not fall within these two instances in which the exception applied. Id.

The letter further stated that it would behoove plaintiff to submit a formal appeal from his claim’s denial within 60 days after the receipt of that letter, despite the Committee’s belief that it had already satisfied plaintiff’s request for an explanation the year before and that he had not yet in its view submitted a formal appeal. Id.

By a letter, dated June 11, 1984, plaintiff informed the Committee that it was his position that the Committee’s failure to reconsider his initial request of May 3, 1983, for an explanation was “already a year late.” Def.Ex. 13.

In addition to EAB’s Employee Benefits Committee’s failure to treat his request for an explanation of his claim’s denial as a formal appeal, plaintiff also alleges that Mr. Timoney, on behalf of the Employee Benefits section, failed to send him copies of the ISP plan and trust within the 30-day period within which such a request should be responded to according to Section 502(c) of ERISA, 29 U.S.C. § 1132(c). Mr. Timoney claims that initially he had directed an assistant to send copies of the ISP plan and trust to plaintiff; upon later learning that plaintiff had not yet received these materials, he made sure copies were sent. Timoney Aff. ¶118-10. Plaintiff alleges that he did not receive these copies until 42 days after the initial 30-day period when he made his first request [i.e., May 3, 1983] had elapsed. Comp. 1188. Under Section 502(c) of ERISA, a court has discretion to hold an administrator, such as Mr. Timoney, personally liable, up to $100.00 a day, for each day that elapses after the initial 30-day period within which he is supposed to respond. Because 42 days allegedly elapsed before plaintiff received copies of the ISP plan and trust, plaintiff has asked that he be awarded $4,200.00 as relief for this delay. Comp. 1190.

At the time he made his three requests for an explanation as to why he did not qualify for the 100% vesting exception, plaintiff states that he was aware that the EAB Employee Benefit Program manual provided that responses to requests for review were to be made within 90 days. PI. Aff. ¶ 22. By plaintiff’s calculation, 90 days after his first request was August 3, 1983. Id. Two weeks later he communicated with his present counsel. Id. On September 26, 1983, a Notice of Intent to Sue was filed with the Secretary of the Department of Labor on the grounds that EAB had violated the ADEA by unlawfully discharging him solely because of his age. Comp.Ex. B-l.

DISCUSSION

Defendant asserts, and plaintiff disagrees, that sufficient discovery has been had to permit this Court to rule on defendant’s summary judgment motion. As will be discussed, this Court finds that the facts which pertain to whether plaintiff’s ADEA claim was timely filed are not in dispute; similarly this Court finds that the facts which pertain to whether plaintiff has exhausted his internal review procedures before his ERISA violation can be entertained, are not in dispute. Thus, the only two legal issues the Court must decide are: first, whether, given the legal definition of the date of discharge, there are any facts which permit the Court to find that there has been an “equitable tolling” of the 300-day period within which ADEA claims must be filed; and second, whether, given case law guidelines, there are any facts which permit this Court to exercise the discretion given it under ERISA and to award plaintiff an amount of $4,200 or less as relief for his alleged failure to receive copies of the ISP plan and trust.

A. Untimeliness of ADEA Filing

Under 29 U.S.C. § 626(d)(2), a charge of age discrimination in employment, sometimes referred to as a notice of intent to sue, must be filed before the EEOC, or, as in this case, before the Secretary of Labor who then refers it to the EEOC, within 300 days of the alleged unlawful practice.

In the present case, if the starting date of the time period on which the “alleged unlawful practice” occurred is August 2, 1982, the date of his notice of discharge from his duties as an employee, then his September 26, 1983 filing is untimely.

If, on the other hand, the time period for filing were to be computed from the date his employer administratively terminated his compensation and benefits, plaintiff’s September 26, 1983 filing would then be timely. The latter construction, although more appealing on its face, must, however, be rejected as a matter of law.

Under Congressional Acts similar to the ADEA, involving statutorily created causes of action to redress various forms of discrimination, the Supreme Court has made it quite clear that the time for filing a discrimination claim begins to run from the time of the discriminatory act, that is, when the employee is notified of the decision to relieve him from his employment responsibilities and discharge him from his duties. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1982) (action under 42 U.S.C. § 1983); Delaware College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (action under Title VII).

In Ricks, the Court ruled that the alleged illegal act, racial discrimination in the denial of tenure, was the date on which the applicable limitations period began to run, rather than the date, roughly one year later, on which his employment contract expired. Ricks, at 259, 101 S.Ct. at 504.

Following Ricks, the Court, in Chardon, ruled that the date on which the respondents were notified that a “final decision had been made to terminate their appointments”, was the point at which the alleged illegal act occurred; the “fact that they were afforded reasonable notice cannot extend the period within which suit must be filed.” Chardon, at 8, 102 S.Ct. at 29.

In Circuit Court cases construing the limitations period for filing under, the ADEA, the date on which the employee has been notified of his discharge from duties has been held to be the date on which the 300-day period begins to run, irrespective of whether the employee continued to receive a salary for several more months as severance pay. See, e.g., Naton v. Bank of California, 649 F.2d 691 (9th Cir.1981); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). In Naton, the Ninth Circuit held “that when unequivocal notice of termination and the last day of work coincide, the alleged unlawful practice occurs on that date.” 649 F.2d at 695. In reaching this holding, the Naton Court explicitly stated that it did so “[f]or the reasons discussed in Bonham.” Id. The Third Circuit in Bonham found in favor of the rule expressly adopted in Naton by expressing its “disfavor” .for a rule which focused on the date of the termination of economic benefits because such a rule “penalizes a company for giving an employee periodic severance pay or other extended benefits after the relationship has terminated rather than severing all ties when the employee is let go.” 569 F.2d at 191-92.

In the present case, this Court finds that there is no dispute between the parties that the date on which plaintiff was notified of his discharge from his responsibilities and duties as an EAB employee was August 2, 1982, which was subsequently confirmed in writings which are also uncontested. This Court further finds that the reasons set forth in Naton and Bonham, discussed supra, are persuasive enough to decide that EAB should not be penalized for providing plaintiff nine months severance pay; and, therefore, declines to hold that April 30, 1983, was the date from which the alleged illegal practice ran.

Finally, in keeping with the ruling in Naton, discussed supra, this Court finds that since the plaintiff’s last day of work coincided with the undisputed notice of his discharge, then August 2, 1982 should be the date from which the timeliness of plaintiff’s filing is measured. By this measure, this Court feels it must hold that as a matter of law, plaintiff’s September 26, 1983 filing was untimely.

B. Considerations For Equitable Tolling of the 300-Day ADEA Filing Do Not Apply

Arguing in the alternative, plaintiff asserts that even if this Court favors the August 2,1982 date, then this Court should consider this a proper case for an equitable tolling of the ADEA’s 300-day filing requirement. Plaintiff, in support of this argument, then quotes at length from Coke v. General Adjustment Bureau, Inc., a Fifth Circuit en banc decision which both surveys and join's the apparent federal trend towards interpretations of the ADEA’s filing requirements as being more analogous to statutes of limitations, and hence subject to equitable tolling, and away from construing its filing requirement as a jurisdictional predicate, the failure to comply with which deprives the court of subject matter jurisdiction, and hence, leaves the court with no power to determine whether time might be tolled for some equitable reason. 640 F.2d 584, 587-95 (5th Cir.1981) (en banc).

Indeed, despite plaintiff’s promptings, this Court is cognizant of the Fifth Circuit’s scholarly review of 1981, as well as the more recent developments in our own Circuit, e.g., Johnson v. AL Tech Specialties Steel Corp., 731 F.2d 143 (2d Cir.1984) (Title VII), which confirm the Fifth Circuit’s prediction that our Circuit is “leaning toward the developing law \i.e., trend] favoring equitable tolling.” Coke, 640 F.2d at 590. However, as was underscored in Johnson, a filing rule may not necessarily be “a jurisdictional predicate”, but, “... ‘in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.’ Rice v. New England College, 676 F.2d 9, 11 (1st Cir.1982).” 731 F.2d at 146. Thus, mindful of our Circuit’s directions, we turn now to consider whether plaintiff’s case presents any of these so-called “recognized equitable considerations.”

On the basis of cases such as Skoglund v. Singer, 403 F.Supp. 797 (D.N.H.1975), which permit a tolling where the employer failed to post ADEA notices, plaintiff at first glance has at least an issue of fact as to whether EAB had these ADEA posters exhibited at their offices. But, even where a court in our own Circuit has been willing to agree that “factual questions exist with respect to defendant’s compliance with the posting requirements,” it has still held that “these questions need not be resolved,” where the plaintiff can be found to “possess actual knowledge of his ADEA rights from sources other than posters.” Draeger v. Jockey Intern., Inc., 583 F.Supp. 570, 571 (S.D.N.Y.1984). As was the case in Draeger, plaintiff in the present suit has admitted in his deposition that he was aware that it was unlawful to discriminate on the basis of age in employment practices from his general reading of business publications and in his own role as a manager of employees. See also Nielsen v. Western Electric Co., 603 F.2d 741, 744 (8th Cir. 1979) (Because there were “sufficient facts in the record from which [a] trial court could conclude that plaintiff was generally aware of his cause of action at the time he was demoted,” it upheld the lower court’s refusal to toll the filing requirement.).

Even assuming arguendo that the plaintiff in the present case had not admitted his awareness that age discrimination was illegal, his asserted failure to see any of the ADEA notices (which. EAB alleges were posted in conspicuous places in all of its 90-odd New York area branches, some of which plaintiff admits to have frequented, and which EAB’s internal audits, apparently conducted in the normal course of business, show that ADEA notices were posted) is still not enough to permit this Court to find in favor of an equitable tolling of the filing requirement. See, e.g., Hrzenak v. White-Westinghouse, 682 F.2d 714, 718-19 (8th Cir.1982) (employee’s assertion that he did not see the ADEA notices, standing alone, is not a sufficient reason for tolling). It might be further noted that the asserted failure to see ADEA notices which were allegedly posted, is not a bar to a court’s issuance of summary judgment. See, e.g., Posey v. Skyline Corp., 702 F.2d 102, 103-04 (7th Cir.), cert. denied, — U.S. -, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983); Keitz v. Lever Bros. Co., 563 F.Supp. 230, 235 (N.D.Ind.1983); Downie v. Electric Boat Div., 504 F.Supp. 1082, 1086 (D.Conn.1980).

Plaintiff cites several other cases in which certain equitable considerations permitted tolling. Although these cases are clearly distinguishable from the present case, we take time to briefly note the ways in which they are.

For example, in Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.1976), aff'd by an equally divided Court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), the Court allowed a tolling where the plaintiff had communicated with an office of the Department of Labor regarding her claim and her employer was already on notice that she intended to pursue her claim; in the present case, neither of these instances exist.

In Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975), the Court indicated it would permit a tolling if, on remand, it were determined that a person similarly situated to plaintiff “with a prudent regard for his rights would have discovered the discrimination in the absence of misleading statements or concealment on the part of the defendant.” Id. at 931. Reeb is inapposite here because plaintiff admits to having suspected that age discrimination was involved in the decision to discharge him and he does not allege that EAB’s actions kept him from learning that EAB had moved two younger men into his section, allegedly replacing him.

The third case plaintiff cites to support a finding of an equitable consideration is Coke v. General Adjustment Bureau, 640 F.2d 584 (5th Cir.1981), in which the employer allegedly promised the plaintiff several times within the statutory filing period that he would rescind the alleged discriminatory demotion, but never did so; needless to say, such promises to reinstate the plaintiff in the present case were not alleged.

The principle of equitable tolling has also been accepted where on the face of the complaint, plaintiff has alleged facts which, if proved, indicate that defendant induced plaintiff to accept early retirement and to forbear from bringing suit in exchange for certain promises of alternative employment. Ott v. Midland-Ross Corp., 523 F.2d 1367 (6th Cir.1975). Similar facts were not alleged to have occurred in the present case. In fact, plaintiff, in the present case, admitted that he never discussed with EAB officers what might occur were he to sue, nor apparently did they instruct him to forbear from doing so. Cf. Fulton v. NCR Corp., 472 F.Supp. 377, 385 (W.D.Va.1979) (no equitable grounds for tolling).

Finally, plaintiff argues that his fear of losing his severance benefits poses an equitable consideration that should permit this Court to toll the time for filing until after he no longer feared the loss of his benefits. In a similar vein, he argues that he feared looking for work with a competitor of EAB because he feared jeopardizing these payments. While this Court is sensitive to the precarious financial position in which plaintiff believed himself to be, and because of this “did nothing,” we simply may not rule that an employer’s provision of severance pay tolls the ADEA’s filing period. We do not believe that as a matter of law the provision of severance pay is the type of “recognized equitable consideration” of which the Second Circuit, inter alia, would approve for the purposes of tolling. Indeed the Eighth Circuit, in Kriegesmann v. Barry-Wehmiller Co., just recently rejected this argument as a reason for tolling. 739 F.2d 357 (8th Cir.1984). In that case, plaintiff had argued “that if he had filed a discrimination charge with EEOC, the employer may have retaliated by cutting his severance benefits or sabotaging his efforts to find a new job.” Id. at 358. The Eighth Circuit in Kriegesmann cited its agreement with the reasons given by the Fourth Circuit in Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982). In Price, the Court wrote:

The attempt to mitigate the harshness of a decision terminating an employee, without more, cannot give rise to an equitable estoppel. The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee’s failure to file in a timely fashion is the consequence of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.

Id.

Turning to the present case, we find ourselves in agreement with the Kriegesmann and Price decisions and decide that the fear of losing severance payments should not ordinarily create an equitable consideration sufficient to toll the ADEA filing period. Moreover, we find that plaintiffs employer took no steps towards plaintiff which, even when viewed in a light most favorable to plaintiff, may be construed as positive misconduct or unmistakably designed to cause plaintiffs delay in filing his charge.

Plaintiff has further contended that he had no inkling of any wrongdoing until May 3, 1983, when he learned that he would not receive EAB’s contributions made after 1980 to his ISP account. To accept this argument would require this Court, in effect, to find that the illegal act of age discrimination occurred on the date he was told he would receive some $4,800 less than he expected to receive. This is untenable.

Having addressed instances in which courts have found equitable considerations sufficient for a tolling, we find that such considerations are insufficient in this case to justify a tolling, and so, we reconfirm our finding above, that August 2,1982 was the date from which the ADEA 300-day filing must be measured.

C. ERISA Claims

1. Request For Imposition of Penalties For Delay in Sending Information

Plaintiff seeks an award of the penalty authorized by Section 502(c) of ERISA, 29 U.S.C. § 1132(c), to be assessed against the administrator of EAB’s Employee Benefit Committee for his failure or refusal to send plaintiff copies of the ISP plan and trust within 30 days after his initial request of May 3, 1983. Because these documents were allegedly not received by plaintiff until July 13, 1983, or 42 days after the 30-day period elapsed, he argues that EAB’s administrator should be held personally liable for the maximum penalty of $100 for each day after the 30-day period lapsed, a total of $4,200.

Section 502(c) of ERISA, 29 U.S.C. § 1132(c), provides:

Any administrator who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested ... within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.

This section, quoted above, both provides a time frame within which requests are to be responded to and holds an administrator personally subject to monetary fines if these requests are not acted upon. The information to be provided by a company’s ERISA plan administrator is detailed in Sections 104(b)(4) and 105(a) of ERISA, 29 U.S.C. §§ 1024(b)(4), 1025(a). In the present case, EAB’s ISP plan and trust are apparently the documents that fall within the scope of information to be provided.

Even assuming arguendo that plaintiff did in fact receive these documents 42 days late, and thus, a technical violation would exist, the statute does not “require” this Court to mechanically issue a sanction by multiplying the maximum per diem penalty by the number of days the documents were allegedly late in receipt. Indeed, as is readily discernible from the language of the statute the decision as to whether to impose a penalty and the amount of that penalty is clearly committed to the discretion of the court.

The weight of authority indicates that penalties are not imposed when a plaintiff has failed to demonstrate that his rights were harmed or otherwise prejudiced by the delay in his receipt of the information. E.g., Paris v. Profit Sharing Plan, Etc., 637 F.2d 357, 362 (5th Cir.1981) (plaintiffs did not attempt to demonstrate prejudice); Wesley v. Monsanto Co., 554 F.Supp. 93, 98 (E.D.Mo.1982), aff'd, 710 F.2d 490 (8th Cir.1983) (no showing of prejudice); Schlomchik v. Retirement Plan of Amalgamated Ins., 502 F.Supp. 240, 245 (E.D. Pa.1980), aff'd, 671 F.2d 496 (3d Cir.1981) (no indication of prejudice to plaintiff's rights); Pollock v. Castrovinci, 476 F.Supp. 606, 618 (S.D.N.Y.1979), aff'd without opin., 622 F.2d 575 (2d Cir.1980) (no indication that plaintiff’s rights were in any way prejudiced); Adams v. Western Conference of Teamsters Pension Plan, 484 F.Supp. 933, 935 (D.Utah 1979) (even if defendants failed to send one or more documents, plaintiff was not harmed by such failure).

This point alone would seem dispositive. Here, the plaintiff has not demonstrated that his ability to appeal EAB’s denial has been in any way adversely affected. Even a year later, EAB has reaffirmed in writing his right formally to appeal his denial. Plaintiff, moreover, has not even indicated that he has been financially harmed by the delay in receiving the copies. Plaintiff does, however, attempt to make a bootstrap argument that his delay in receiving the copies, and knowing that EAB’s Employee Benefits Manual provided 90 days to review his request to reconsider his denial (EAB still maintains that he has formally not done so), caused him to wait until two weeks after the 90-day period had lapsed to seek counsel for both his ERISA claim and his ADEA claim. But, as discussed previously, we already ruled that plaintiff’s ADEA claim was untimely and that no equitable considerations exist to permit tolling.

Finally, we add that plaintiff has not even demonstrated bad faith or intentional delay on the part of defendant. Mr. Timoney’s affidavit stated that once he was told that his previous alleged instruction to an assistant had not been carried out, he claims to have seen to it himself that copies were sent out. Thus, at most plaintiff’s claim amounts to an allegation of nonfeasance, but not purposeful malfeasance. See, e.g., Bonin v. American Airlines, Inc., 562 F.Supp. 896, 898 (N.D.Tex.1983).

In one case, Lieske v. Morlock, the Court decided penalties could be awarded; but in that case the defendant had submitted only unverified assertions that plaintiff had received the information and plaintiffs alleged that they had not received the information requested over the 1980-81 period. 570 F.Supp. 1426, 1430 (N.D.Ill.1983). By contrast, in the present ease, plaintiff readily admits to having received the information requested and defendant submitted more than mere unverified assertions.

Thus, for the reasons outlined above, this Court feels it would be inappropriate and against the weight of authority to impose penalties in the instant case.

2. Request For the Imposition of Penalties For Failure to Fully Explain and Review Denial

In plaintiff’s twelfth and thirteenth claims, a variety of demands are made. In the twelfth, he alleges that the failure to provide him with a written explanation or clarification of the reasons for the denial of his claim to the sum of over $4,800 of EAB contributions, a violation of Section 503 of ERISA, 29 U.S.C. § 1133, should entitle him to recover under Section 502(c) of ERISA, 29 U.S.C. § 1132(e), $100 per day from the date of his request until such time as he receives a sufficient explanation or the date of trial. Comp. ¶¶ 91-95.

Section 503 of ERISA, 29 U.S.C. § 1133, provides that “every employee benefit plan shall ... provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial.” The language of Section 503 makes no reference to the plan administrator of Section 502(c); this latter section, as was detailed above, is directed at ensuring that an administrator respond to requests for information. The former section, Section 503, does not impose any time within which an explanation is to be produced; nor, more importantly, does it even authorize this Court to impose penalties for the failure to produce a written explanation. We pause to note here that the record before us shows that plaintiff has received a lengthy written explanation, albeit in May of 1984, inviting him to appeal within 60 days of the receipt as well as an affidavit by an administrator of EAB’s plan alleging that he explained to plaintiff several times over the phone the reason for the denial.

At this time, this Court properly may only suggest to the plaintiff that he should exhaust the internal administrative review procedures available to him, because this is what the regulations for ERISA as promulgated by the Secretary of Labor require. The regulation, pertaining to Section 503, provides that if plaintiff has failed to receive adequate notice of the denial of his claim under Section 503, then “... the claimant shall be permitted to proceed to the review stage,” 29 C.F.R. § 2560.-503(e)(2); this “review stage” is the appeal procedure EAB has in place. Moreover, as far as this regulation is concerned, this Court is bound by that “venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (footnote with cites omitted).

Even assuming that this litigation has brought to light evidence of which plaintiff was unaware, but would be helpful to his claim, we still must defer to these regulations and ERISA’s statutory schema, by directing plaintiff to appeal to his plan’s committee to make the initial reassessment of his claim: “This is necessary to insure that the fiduciary [i.e., the pension plan committee] retains the ‘primary responsibility for claim processing’ that Congress intended. Challenger v. Local Union No. 1, 619 F.2d 645, 649 (7th Cir.1980).” Wolfe v. J.C. Penney Co., Inc., 710 F.2d 388, 394 (7th Cir.1983).

Turning now to plaintiff’s thirteenth claim for EAB’s failure to give him, inter alia, adequate notice of the denial of a portion of EAB contributions to his IPS account, clarify his rights, and afford him an opportunity for a full and fair review of his claim, should all entitle him to actual damages in an amount equal to the value of plaintiff’s lost wages and benefits [over $150,000] and legal and equitable relief. Comp. HU 96-99, 100(H).

There is little in the record that would support such an enormous award of damages even when construing it in a light that is most favorable to the plaintiff, as we must on a motion for summary judgment. Plaintiff, here, at best, has demonstrated that he did not receive a written explanation of his claim’s denial within a reasonable period. But, even so, this does not amount to an injury for which a court normally awards damages under ERISA. By way of illustration, we need only note that even where a plaintiff may have received no written explanation, technically a statutory violation, "... courts have held that the absence of [a showing of] prejudice removes the basis for an award of damages [cites omitted].” Donaldson v. Hamburg Savings Bank, 568 F.Supp. 897 (E.D.N.Y.1983).

While not wishing to dwell on this thirteenth claim, we fail to understand why plaintiff has sought relief in federal court at this time when the sheer volume of case law should have counseled him that we may not address the denial of his claim until he has exhausted his administrative remedies. Clearly, Congress’s intent when it passed ERISA was to foster the growth of private pension and benefit plans with their own administrative review procedures; its intent was not to burden the courts with managing these programs. As was well summarized in an oft cited case:

An examination of the underlying ERISA policies, interpreted analogously to the development of federal law under LMRA § 301, leads the court to conclude that Congress intended a claimant to exhaust his inter-fund remedies before seeking federal court review____ First, Section 1133 of the Act specifically requires the establishment of claims procedures, and the Secretary of Labor, pursuant to 29 U.S.C. § 1135, has promulgated extensive guidelines to implement these procedures. Much like the labor grievance system, this claim/appeal mechanism is designed to reduce frivolous claims, promote the consistent treatment of claims, and create a non-adversarial method of claims settlement. [Cite omitted.]
Tied to these inter-fund claims procedures was Congress’ awareness of the potential costs of pension reform, and it sought to “strike a balance between providing meaningful reform and keeping costs within reasonable limits.” [1974] U.S.Code & Admin.News, pp. 4670, 4682. Congress was particularly concerned with outlining a private insurance system that would operate efficiently, thereby increasing its acceptance and institution among American business. U.S.Code News, supra. If claimants were allowed to litigate the validity of their claims before a final trustee decision was rendered, the costs of dispute settlement would increase markedly for employers.

Taylor v. Bakery and Confectionary Union and Industry International Welfare Fund, 455 F.Supp. 816, 818-19 (E.D.N.C. 1978); see, e.g., accord: Kross v. Western Electric Co., 701 F.2d 1238, 1244 (7th Cir. 1983); Amato v. Bernard, 618 F.2d 559, 567 (9th Cir.1980); Weeks v. Coca-Cola Bottling Co., 491 F.Supp. 1312, 1314 (E.D. Ark.1980); Lucas v. Warner & Swasey Co., 475 F.Supp. 1071, 1074 (E.D.Pa.1979). From the foregoing, it should be clear that federal courts must strictly impose the “exhaustion requirement” upon claims such as plaintiff’s, here; to do otherwise would be to contravene the intent of the Congressional policies embodied in ERISA’s schema.

As was written in Lucas v. Warner & Swasey Co.; and as is applicable in this ease: “The issue here is not who was at fault throughout this whole misunderstanding but whether [plaintiff’s] failure to exhaust internal remedies can be excused under any one of the court-created exceptions.” 475 F.Supp. at 1075. In the present case, as in Lucas, there has been no showing, nor even allegation, that it would be futile to require exhaustion, nor has there been mention that to do so would incur irreparable harm; and thus, we may reasonably find that our plaintiff may not have his case heard here under one of these so-called exceptions.

Therefore, the Court concludes that it must dismiss plaintiff’s twelfth and thirteenth claims. Plaintiff should be on notice that even if he does proceed to exhaust his inter-fund remedies, and still finds himself dissatisfied, this Court’s power to review a final decision of EAB’s Employee Benefits Committee is limited to a determination of whether its decision was “arbitrary and capricious.” E.g., Miles v. New York State Teamsters Conference, Etc., 698 F.2d 593, 599 (2d Cir.1983).

CONCLUSION

Having decided that plaintiff’s claims under ADEA and ERISA fail to amount to properly actionable federal claims as a matter of law, this Court is simultaneously divested of its jurisdiction over plaintiff’s pendent State law claims. Summary judgment is awarded in favor of the defendants, for the reasons stated above, and the complaint is hereby dismissed.

SO ORDERED.

      . As may be noted from the caption in this case, plaintiff has joined as defendants more than merely the European American Bank and Trust Company and the European American Banking Corporation which is known collectively as EAB. The additional corporations and committees named, e.g., the Incentive Savings Plan (ISP) Committee, et at., are all in fact under the aegis of some aspect of the collective entity "EAB". The other named defendants, King F. Lowe, Harry E. Ekblom, Francis Russo, Jr., and Donald A. Crowley, are being sued in their capacity as agents of EAB and as individuals. Since the same federal claims are raised by plaintiff against all of the above, and they are all apparently represented by the same counsel, we have for the sake of clarity and simplicity chosen to refer to all these named parties as the "defendant” or even more simply as "EAB".

      . The only issues as to which plaintiff argues that there has not been sufficient discovery and that defendant has allegedly not been as forthcoming in materials as plaintiff desired, concern matters (such as evidence which might tend to show a pattern of discrimination against older EAB employees) that this Court would only need to address in the event it were to have found the plaintiff’s ADEA claim was timely filed.