15-3905-cv
Swergold v. Murray

                                  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 12th day of July, two thousand sixteen.

PRESENT:             JOSÉ A. CABRANES,
                     CHRISTOPHER F. DRONEY,
                                  Circuit Judges,
                     JEFFREY ALKER MEYER,
                                  District Judge. *


NATHANIEL M. SWERGOLD,

                             Plaintiff-Appellant,                   15-3905-cv

                             v.

KEVIN F. MURRAY, individually, and in his capacity as
Deputy Comptroller of the State of New York, ROBERT
COUGHLIN, individually, and in his capacity as Counsel to
the New York State and Local Employees’ Retirement
System, THOMAS P. DINAPOLI, individually, and in his
capacity as Comptroller of the State of New York, LUKE
BIERMAN, individually, and in his capacity as General
Counsel for the Comptroller of the State of New York,

                             Defendants-Appellees.



    *
    The Honorable Jeffrey Alker Meyer of the United States District Court for the District of
Connecticut, sitting by designation.

                                                      1
FOR PLAINTIFF-APPELLANT:                                     GEORGE J. SZARY, DeGraff, Foy & Kunz,
                                                             LLP, Albany, NY.

FOR DEFENDANTS-APPELLEES:                                    KATE H. NEPVEU, Assistant Solicitor
                                                             General (Barbara D. Underwood, Solicitor
                                                             General, and Andrew D. Bing, Deputy
                                                             Solicitor General, on the brief), for Eric T.
                                                             Schneiderman, Attorney General of the
                                                             State of New York, Albany, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Mae A. D’Agostino, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-appellant Nathaniel M. Swergold (“Swergold”) appeals from a November 5, 2015
judgment of the District Court, which dismissed his complaint as untimely. Swergold brought this
action pursuant to 42 U.S.C. § 1983, alleging that defendants-appellees—New York State employees
who administer the New York State and Local Retirement System (“NYSLRS”)—violated his due
process rights by wrongfully revoking his retirement benefits and by issuing a press release
announcing the revocation. On appeal, Swergold argues that the District Court erred in holding that
his claim was foreclosed by the statute of limitations, that he is entitled to equitable tolling, and that
he is entitled to summary judgment on the issue of liability. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

        The District Court properly dismissed Swergold’s claim as time-barred. A § 1983 claim
accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (internal quotation marks omitted).
Here, Swergold alleges a so-called “stigma plus” deprivation, i.e., “an injury to one’s reputation (the
stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus), without
adequate process.” Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (some internal
quotation marks omitted). Accordingly, his claim accrued when both the “stigma” and the “plus”
were present—in this case, in May 2008, when defendants revoked Swergold’s retirement benefits
and issued a press release announcing the revocation without a predeprivation hearing.1 Because
§ 1983 claims in New York are subject to a three-year statute of limitations, Milan v. Wertheimer, 808


    1
        We assume arguendo that a predeprivation hearing was required, as Swergold argues.

                                                    2
F.3d 961, 963 (2d Cir. 2015), the limitations period expired in May 2011. This suit, which was
commenced on November 20, 2014, is therefore untimely.

        Swergold offers two arguments to the contrary, neither of which has merit. First, he argues
that he could not have known that he was injured until July 19, 2013, when defendants reversed
their earlier determination that Swergold was ineligible for NYSLRS retirement benefits. But to
commence this suit, Swergold needed only to allege, not to prove, that defendants had wrongfully
revoked his benefits and issued a stigmatizing press release without adequate process. See Segal, 459
F.3d at 212 n.5. Indeed, Swergold made substantially similar allegations in the state-court action he
commenced on May 23, 2008.

         Second, Swergold argues that his stigma-plus claim would have been unripe until July 19,
2013, pursuant to Judge Kahn’s decision in D’Agostino v. DiNapoli, No. 1:09-CV-1347, 2010 WL
2925703, at *1 (N.D.N.Y. July 20, 2010). To the extent that Swergold interprets D’Agostino to mean
that Swergold could not have commenced this action before he received a final administrative
determination of his eligibility for retirement benefits, that interpretation conflicts with settled
Second Circuit law, as discussed above.2 Regardless of whether D’Agostino does in fact conflict with
our precedents, that decision does not justify equitable tolling. Neither a plaintiff’s reliance on an
erroneous district court decision that is contrary to established Second Circuit law nor a plaintiff’s
misreading of a sound district court decision would constitute an “extraordinary circumstance” that
“stood in the way of his bringing a lawsuit.” See Ellul v. Congregation of Christian Bros., 774 F.3d 791,
801 (2d Cir. 2014) (brackets omitted and internal quotation marks omitted); cf. Vill. of Freeport v.
Barrella, 814 F.3d 594, 609 n.59 (2d Cir. 2016) (noting that a district court’s confusion about an issue
does not “alter the clarity of existing law” as established by this Court).

                                            CONCLUSION

       We have reviewed all of the arguments raised by Swergold on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




    2
        We intimate no view as to the merits of D’Agostino, which is not before us.

                                                    3
