Officer Files Appeal 17 Years Too Late

John Nicolosi was a police officer for the New York City Transit Authority. The Transit Authority eventually fired Nicolosi in 1986, concluding that he permitted a civilian, Kirk Raja, to possess a firearm and use that firearm to harass subway passengers.

In 2003, Raja submitted an affidavit to Nicolosi. In the affidavit, Raja claimed that he testified falsely against Nicolosi at the termination hearing and that another officer was the one who gave him the gun. Raja also claimed that various members of the Transit Authority were aware of the fact that his testimony against Nicolosi was perjured.

Nicolosi filed a lawsuit in 2004, seeking to overturn his termination and challenging his termination on due process grounds. A federal trial court dismissed the lawsuit, holding that Nicolosi did not bring the claim within New York’s three-year statute of limitation.

Nicolosi argued that the doctrine of “equitable tolling” should allow him to bring the lawsuit. Equitable tolling applies when a defendant acts fraudulently, and the doctrine allows the statute of limitations to begin running when a plaintiff “discovers, or by the exercise of reasonable diligence should have discovered, the cause of action.”

The Court refused to allow Nicolosi the benefit from the equitable tolling doctrine. The Court was clearly skeptical of Nicolosi’s argument:

“Nicolosi argues that he needed to contact Raja, but he was unable to find him for 17 years despite his reasonable diligence. However, Nicolosi offers no specific allegations or evidence that he exercised reasonable diligence for all of the 17 years. Nicolosi fails to explain the steps that he took to locate Raja, and provides no information about the circumstances under which he finally found Raja, or why it took him all of 17 years to do so.”

Nicolosi v. City of New York, 2006 WL 3392736 (S.D.N.Y. 2006).

This article appears in the January 2007 issue