24-1219 Sarkar v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of June, two thousand twenty-five.
PRESENT: GERARD E. LYNCH, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. ______________________________________
JAY SARKAR,
Plaintiff-Appellant,
v. No. 24-1219
CITY OF NEW YORK, THE SPECIAL COMMISSIONER OF INVESTIGATION FOR THE NEW YORK CITY SCHOOL DISTRICT, NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD A. CARRANZA, Chancellor of New York City Department of Education, RICHARD CONDON, Special Commissioner of Investigation, ANTOINETTE BELLO, DOE, BARBARA HANSON, DOE, KIM NOHAVICKA, DOE, LAURENCE HENRY, SCI Investigator, DAVID NEGRON, SCI Investigator,
Defendants-Appellees. * _______________________________________
For Plaintiff-Appellant: Jay Sarkar, pro se, Corona, NY.
For Defendants-Appellees: Deborah A. Brenner, Jonathan Schoepp-Wong, for Muriel Goode- Trufant, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Mary Kay Vyskocil, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 28, 2024 judgment of the district
court is AFFIRMED.
Jay Sarkar, proceeding pro se, appeals from the district court’s dismissal of
his complaint, which asserted numerous state and federal causes of action against
the City of New York, the New York City Department of Education, and others
(collectively, the “City”), related to his termination in April 2006 as an independent
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 contractor for the City and the publication in December 2006 of a report by the
Special Commissioner of Investigation (the “SCI”) regarding Sarkar’s conduct.
As relevant here, the district court concluded that Sarkar’s claims for defamation,
fraud, and conspiracy to interfere with his civil rights in violation of 42 U.S.C.
§ 1985 were time-barred and that the doctrines of equitable tolling and equitable
estoppel did not otherwise salvage his claims. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal.
We review the district court’s application of a statute of limitations de novo.
See Horror Inc. v. Miller, 15 F.4th 232, 241 (2d Cir. 2021). A district court may
dismiss a cause of action as untimely “when a defendant raises . . . lack of
timeliness[] as an affirmative defense and it is clear from the face of the complaint,
and matters of which the court may take judicial notice, that the plaintiff’s claims
are barred as a matter of law.” Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015)
(internal quotation marks omitted). When a plaintiff argues that he is entitled to
equitable tolling and the district court determines that such tolling is
inappropriate, “we review the legal premises for that conclusion de novo, the
factual bases for clear error, and the ultimate decision for abuse of discretion.”
Doe v. United States, 76 F.4th 64, 70 (2d Cir. 2023). Because Sarkar has been pro se
3 throughout, we “liberally construe [his] pleadings and briefs . . . , reading such
submissions to raise the strongest arguments they suggest.” McLeod v. Jewish
Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks
omitted).
Sarkar first contends that his defamation claim is timely because the City
republished the 2006 SCI report multiple times, including as late as 2019. But
“New York adheres to a single publication rule in determining when the statute of
limitations begins to run on a defamation claim.” Van Buskirk v. N.Y. Times Co.,
325 F.3d 87, 89 (2d Cir. 2003) (citing Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119,
125 (1948)). Under this rule, “a defamation claim accrues at publication,” which
is “‘the earliest date on which the work was placed on sale or became generally
available to the public.’” Id. at 89 (quoting Tomasino v. William Morrow & Co., 571
N.Y.S.2d 571, 572 (2d Dep’t 1991)); see also Firth v. State, 98 N.Y.2d 365, 370 (2002)
(applying the single publication rule to internet publications). And while it is
true that New York courts have recognized an exception to this rule for certain
republications, that exception applies only where “the subsequent publication is
intended to and actually reaches a new audience, the second publication is made
on an occasion distinct from the initial one, the republished statement has been
4 modified in form or in content, and the defendant has control over the decision to
republish.” Martin v. Daily News L.P., 990 N.Y.S.2d 473, 483 (1st Dep’t 2014)
(internal quotation marks omitted).
Applying New York’s single publication rule to the facts alleged in Sarkar’s
complaint, the district court concluded that Sarkar’s defamation claim accrued in
December 2006 when the City made the SCI report available to the public via its
website. Consequently, Sarkar needed to file his defamation claim by December
2007. See N.Y. C.P.L.R. § 215(3). Sarkar attempts to sidestep that limitation by
arguing that the SCI report was subsequently reposted on various websites. But
these websites were all hosted by the SCI or its parent agency, and the content of
the report never changed. Because the subsequent postings did not target new
audiences and the content of the report did not change, the republication exception
does not apply here. See Martin, 990 N.Y.S.2d at 483.
Sarkar also argues that his fraud claim did not accrue until 2017 because the
City fraudulently concealed the basis for this claim, which did not become
apparent until the City responded to his request under New York’s Freedom of
Information Law (“FOIL”) in November 2017. But the law is clear that tort claims
brought in New York against a municipality and its officers and employees, such
5 as the defendants here, must be filed within one year and ninety days after the
event on which the claim was based. See N.Y. Gen. Mun. Law § 50-i(1); N.Y.
Educ. Law § 3813(2). Thus, even assuming that Sarkar is correct that his fraud
claim did not accrue until November 2017, he still would have been required to
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24-1219 Sarkar v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of June, two thousand twenty-five.
PRESENT: GERARD E. LYNCH, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. ______________________________________
JAY SARKAR,
Plaintiff-Appellant,
v. No. 24-1219
CITY OF NEW YORK, THE SPECIAL COMMISSIONER OF INVESTIGATION FOR THE NEW YORK CITY SCHOOL DISTRICT, NEW YORK CITY DEPARTMENT OF EDUCATION, RICHARD A. CARRANZA, Chancellor of New York City Department of Education, RICHARD CONDON, Special Commissioner of Investigation, ANTOINETTE BELLO, DOE, BARBARA HANSON, DOE, KIM NOHAVICKA, DOE, LAURENCE HENRY, SCI Investigator, DAVID NEGRON, SCI Investigator,
Defendants-Appellees. * _______________________________________
For Plaintiff-Appellant: Jay Sarkar, pro se, Corona, NY.
For Defendants-Appellees: Deborah A. Brenner, Jonathan Schoepp-Wong, for Muriel Goode- Trufant, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Mary Kay Vyskocil, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 28, 2024 judgment of the district
court is AFFIRMED.
Jay Sarkar, proceeding pro se, appeals from the district court’s dismissal of
his complaint, which asserted numerous state and federal causes of action against
the City of New York, the New York City Department of Education, and others
(collectively, the “City”), related to his termination in April 2006 as an independent
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 contractor for the City and the publication in December 2006 of a report by the
Special Commissioner of Investigation (the “SCI”) regarding Sarkar’s conduct.
As relevant here, the district court concluded that Sarkar’s claims for defamation,
fraud, and conspiracy to interfere with his civil rights in violation of 42 U.S.C.
§ 1985 were time-barred and that the doctrines of equitable tolling and equitable
estoppel did not otherwise salvage his claims. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal.
We review the district court’s application of a statute of limitations de novo.
See Horror Inc. v. Miller, 15 F.4th 232, 241 (2d Cir. 2021). A district court may
dismiss a cause of action as untimely “when a defendant raises . . . lack of
timeliness[] as an affirmative defense and it is clear from the face of the complaint,
and matters of which the court may take judicial notice, that the plaintiff’s claims
are barred as a matter of law.” Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015)
(internal quotation marks omitted). When a plaintiff argues that he is entitled to
equitable tolling and the district court determines that such tolling is
inappropriate, “we review the legal premises for that conclusion de novo, the
factual bases for clear error, and the ultimate decision for abuse of discretion.”
Doe v. United States, 76 F.4th 64, 70 (2d Cir. 2023). Because Sarkar has been pro se
3 throughout, we “liberally construe [his] pleadings and briefs . . . , reading such
submissions to raise the strongest arguments they suggest.” McLeod v. Jewish
Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks
omitted).
Sarkar first contends that his defamation claim is timely because the City
republished the 2006 SCI report multiple times, including as late as 2019. But
“New York adheres to a single publication rule in determining when the statute of
limitations begins to run on a defamation claim.” Van Buskirk v. N.Y. Times Co.,
325 F.3d 87, 89 (2d Cir. 2003) (citing Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119,
125 (1948)). Under this rule, “a defamation claim accrues at publication,” which
is “‘the earliest date on which the work was placed on sale or became generally
available to the public.’” Id. at 89 (quoting Tomasino v. William Morrow & Co., 571
N.Y.S.2d 571, 572 (2d Dep’t 1991)); see also Firth v. State, 98 N.Y.2d 365, 370 (2002)
(applying the single publication rule to internet publications). And while it is
true that New York courts have recognized an exception to this rule for certain
republications, that exception applies only where “the subsequent publication is
intended to and actually reaches a new audience, the second publication is made
on an occasion distinct from the initial one, the republished statement has been
4 modified in form or in content, and the defendant has control over the decision to
republish.” Martin v. Daily News L.P., 990 N.Y.S.2d 473, 483 (1st Dep’t 2014)
(internal quotation marks omitted).
Applying New York’s single publication rule to the facts alleged in Sarkar’s
complaint, the district court concluded that Sarkar’s defamation claim accrued in
December 2006 when the City made the SCI report available to the public via its
website. Consequently, Sarkar needed to file his defamation claim by December
2007. See N.Y. C.P.L.R. § 215(3). Sarkar attempts to sidestep that limitation by
arguing that the SCI report was subsequently reposted on various websites. But
these websites were all hosted by the SCI or its parent agency, and the content of
the report never changed. Because the subsequent postings did not target new
audiences and the content of the report did not change, the republication exception
does not apply here. See Martin, 990 N.Y.S.2d at 483.
Sarkar also argues that his fraud claim did not accrue until 2017 because the
City fraudulently concealed the basis for this claim, which did not become
apparent until the City responded to his request under New York’s Freedom of
Information Law (“FOIL”) in November 2017. But the law is clear that tort claims
brought in New York against a municipality and its officers and employees, such
5 as the defendants here, must be filed within one year and ninety days after the
event on which the claim was based. See N.Y. Gen. Mun. Law § 50-i(1); N.Y.
Educ. Law § 3813(2). Thus, even assuming that Sarkar is correct that his fraud
claim did not accrue until November 2017, he still would have been required to
file his complaint by February 8, 2018. Because he did not file his complaint until
May 2019, his fraud claim is also barred by the statute of limitations.
Alternatively, Sarkar contends that the district court should have applied
equitable tolling to his state law fraud claim. But “the doctrine of equitable
tolling is not available in state causes of action in New York.” Jang Ho Choi v.
Beautri Realty Corp., 22 N.Y.S.3d 431, 452 (1st Dep’t 2016). And even if we liberally
construe Sarkar’s filings to raise an argument that he is entitled to equitable
estoppel, which is recognized in New York, Sarkar’s fraud claim is still untimely.
New York law is clear that “[e]quitable estoppel may be invoked to defeat a statute
of limitations defense [only] when the plaintiff was induced by fraud,
misrepresentations[,] or deception to refrain from filing a timely action.” Doe v.
Holy See (State of Vatican City), 793 N.Y.S.2d 565, 568 (3d Dep’t 2005) (internal
quotation marks omitted). Furthermore, a plaintiff must demonstrate that he
exercised due diligence in bringing the action. See id. at 569.
6 Sarkar has failed to establish that he is entitled to equitable estoppel. For
starters, “equitable estoppel will not apply if the plaintiff possesses timely
knowledge sufficient to place him or her under a duty to make inquiry and
ascertain all the relevant facts prior to the expiration of the applicable [s]tatute of
[l]imitations.” McIvor v. Di Benedetto, 503 N.Y.S.2d 836, 837 (2d Dep’t 1986)
(internal quotation marks omitted). Here, Sarkar knew about the accusations
against him no later than December 2006 – the date when the SCI report was
published. He therefore could have pursued his fraud claim then.
Nor has Sarkar alleged misconduct by the City that prevented him from
timely filing his lawsuit. To the extent that Sarkar relies on the allegedly false
information that led to his termination, New York law is clear that a plaintiff
seeking equitable estoppel “may not rely on the same act that forms the basis for
the claim.” Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491 (2007). And to the
extent that Sarkar relies on the City’s failure to respond to his FOIL request, New
York law is equally clear that “mere silence or failure to disclose the wrongdoing
is insufficient” to warrant equitable estoppel, particularly where the allegedly false
information was known to the plaintiff. Id. (internal quotation marks omitted).
7 Sarkar also failed to allege in his complaint how he purportedly exercised
due diligence in pursuing this cause of action. While Sarkar set forth in his
appellate brief a number of steps that he took between 2006 and 2017 to obtain
records related to his termination, “a party may not amend pleadings through a
brief.” Gamma Traders – I LLC v. Merrill Lynch Commodities, Inc., 41 F.4th 71, 80 (2d
Cir. 2022) (internal quotation marks omitted). Sarkar is thus “limited to [the]
factual contentions [he] alleged in [his] operative complaint,” which fail to
establish the requisite due diligence for equitable estoppel to apply here. Id.
Next, Sarkar asserts that his section 1985 claim was timely because the City
engaged in a continuing violation of his rights, which delayed the accrual of this
cause of action. But Sarkar’s section 1985 claim centers on his termination and
the publication of the SCI report, which are discrete acts and thus do not fall within
the continuing violation doctrine. 1 See Gonzalez v. Hasty, 802 F.3d 212, 222 (2d Cir.
2015).
1 Sarkar further argues that the City engaged in a continuing violation of his rights by failing to disclose documents for ten years and by keeping its administrative investigation open for eighteen years. But Sarkar did not present these arguments to the district court, and we will not consider them for the first time on appeal. See Green v. Dep’t of Educ., 16 F.4th 1070, 1078 (2d Cir. 2021).
8 Finally, Sarkar contends that the district court violated his rights by
deciding the City’s motion to dismiss based on written submissions only and
denying him an opportunity to be heard at an oral hearing or trial. We have held
that where a plaintiff has “filed extensive written arguments with the district
court, which allowed him to address the specific issues of law with which the
district court was concerned[,] . . . the decision whether or not to hold an oral
hearing on a motion to dismiss lies in the sound discretion of the trial court.”
Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998). Here, Sarkar not
only amended his complaint twice but also provided an extensive written
opposition to the City’s motion to dismiss – along with hundreds of pages of
exhibits – all of which the district court considered and liberally construed.
Indeed, it was Sarkar who requested that the case “be dealt with through written
submission.” Dist. Ct. Doc. No. 21 at 4. On this record, we conclude that the
district court did not abuse its discretion in deciding the City’s motion to dismiss
on the papers.
* * *
9 We have considered Sarkar’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court