UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTIONS IS AS FOLLOWS:

In sequence number 003, defendant State of New York ("the State") moves, pursuant to CPLR 3211 (a)(7), for an order dismissing plaintiff pro se Brian Tuitt's First Amended Complaint for failure to state a cause of action against it for which relief can be granted.In sequence 004, defendants City of New York ("the City") and Board of Trustees of the New York City Police Pension Fund ("the PPF") move, and defendant New York City Police Department Detectives' Endowment Association s/h/a "Detective Union" ("the DEA") cross-moves, pursuant to CPLR 3211 (a)(5), and (7), for an order dismissing plaintiff's first amended complaint on the grounds that it is: (1) time barred and (2) that plaintiff fails to state a cause of action for which relief can be granted. Having reviewed all of the motion papers and the applicable statutes and case law, and having requisitioned the complete court file in this matter, this Court grants the motions by the State, the City and the PPF and the cross-motion by the DEA.

Factual and Procedural Background:

Plaintiff was a detective in the New York City Police Department ("NYPD") and became a member of the PPF in January of 1987. Following the terrorist attacks of September 11, 2001, plaintiff allegedly performed search, recovery and rescue work at the World Trade Center site and, as a result, sustained post-traumatic stress disorder. In an internal memorandum dated March 2, 2005, plaintiff's commanding officer noted that, in February of 2005, plaintiff was twice arrested for sexually abusing minors. The commanding officer further noted that, as a result of plaintiff's arrests, "arrangements were made [by his attorney] for his resignation" from the NYPD and that plaintiff voluntarily resigned from the PPF on March 2, 2005. After his resignation, plaintiff pleaded guilty to the charges against him and he is currently incarcerated.On November 12, 2006, plaintiff wrote to the PPF requesting an application for disability retirement benefits pursuant to New York City Administrative Code ("NYC Admin. Code") §13-252.1 ("the WTC Law"). NYC Admin. Code § 13-252.1(2)(a) provides the following language, [*2]which shall be referred to herein as "the WTC presumption":

if a member who participated in World Trade Center rescue, recovery or cleanup operations as defined in section two of the retirement and social security law, and subsequently retired on a service retirement, an ordinary disability retirement, an accidental disability retirement, or a performance of duty disability retirement and

subsequent to such retirement is determined by the [PPF] to have a qualifying World Trade Center condition, as defined in section two of the retirement and social security law, upon such determination by [PPF], it shall be presumed that such disability was incurred in the performance and discharge of duty.

A "member" is defined as "any person included in the membership of the [PPF]" (NYC Admin. Code § 13-214) or "all persons in city-service." (NYC Admin. Code § 13-215).

On November 27, 2006, the PPF notified plaintiff that such benefits were only available to active or retired City employees and that because he had resigned, he was not eligible for them. Plaintiff thereafter submitted to PPF a "Notice of Participation in the World Trade Center Rescue, Recovery, or Clean-up Operations" ("Notice of Participation") in which he claimed that he worked at the World Trade Center site after September 11, 2001. In response, the PPF advised plaintiff on February 21, 2007 that "[u]nder existing law, only members in active [C]ity service, or members who retired for service retirement, ordinary disability retirement, or vested retirement after 9/11/01 [were] eligible for benefits" and that plaintiff's request for such benefits was thus denied. By correspondence dated March 13, 2007, counsel for the PPF advised plaintiff that "because [he] resigned from the NYPD and [was] no longer in New York City or State employment, [he was] ineligible for benefits."

On or about January 22, 2013, plaintiff commenced this action seeking a declaration that the WTC Law was unconstitutional and that the WTC presumption should apply to him despite the fact that he resigned from the PPF . He claims that the legislature did not intend to disqualify those who resigned from the NYPD from receiving benefits under the statute. Plaintiff alleged as causes of action that the State, the City and the PPF violated his constitutional rights and acted with deliberate indifference by refusing to apply the WTC presumption to him. He further asserted that the defendants violated his right to equal protection by refusing to afford him benefits pursuant to the WTC Law.

On or about June 5, 2013, plaintiff served a first amended complaint seeking a declaration that 1) the WTC Law violated New York State Executive Law § 296 and NYC Admin. Code § 8-502 (the New York State and City Human Rights Laws, respectively ("HRL"); 2) the WTC Law does not fulfill the legislature's intent of providing benefits to all first responders; 3) plaintiff's resignation was not proper; 4) the WTC Law is in violation of Title II of the Americans With Disabilities Act of 1990 ("ADA"), 42 USC § 12132; 5) the WTC Law is unconstitutional and violated his rights to due process and equal protection; and that 6) an injunction is warranted to amend the WTC Law to include him.

The first amended complaint names as proposed additional plaintiffs Elmer Santiago and Charles Gilliam, who were also allegedly denied their rights under the WTC Law because they [*3]resigned from the NYPD and New York City Department of Sanitation, respectively.^[FN1] Plaintiff claims that "[p]laintiffs are seeking a class action or class of one status."

Positions of the Parties:

The State argues that it is entitled to dismissal of the amended complaint against it because it fails to state a cause of action. Specifically, the State asserts that plaintiff has failed to allege either that it is responsible for enforcing the WTC Law or is responsible for the imposition of any penalties pursuant to the statute.

The City and the PPF argue that plaintiff failed to bring the claim as an Article 78 proceeding, which is the proper method of challenging an administrative determination such as that by the PPF herein. They assert that, since this claim was commenced after the expiration of the four-month statute of limitations applicable to Article 78 proceedings set forth in CPLR 217(1), it is time-barred. They claim that the four month period began to run on February 21, 2007, when the PPF advised plaintiff that he was not entitled to benefits under the WTC Law. In any event, maintain the City and PPF, plaintiff's claims are otherwise barred by the three-year statute of limitations applicable to HRL violations.

Further, the City and PPF assert that plaintiff failed to state a claim upon which relief may be granted. They claim that the PPF properly interpreted the plain language of the WTC Law to apply only to members of the PPF. The City and PPF maintain that plaintiff failed to set forth a claim against them pursuant to the State or City HRL. Additionally, they assert that plaintiff fails to state an equal protection or substantive or procedural due process claim and that he fails to state a claim pursuant to the ADA.

In support of its cross-motion, the DEA argues that, since it is a not-for-profit 501(c)(3) organization and not a governmental agency, it is an improper party to this action. Specifically, it maintains that it did not administer retirement benefits for the NYPD. It further adopts the arguments made by the City and PPF in support of their motion to dismiss. [*4]

In opposition to the motions^[FN2], plaintiff argues that he is entitled to have the WTC presumption apply to him. He maintains that his claims are not time-barred and that he properly commenced a declaratory judgment action since he could not obtain the relief he sought pursuant to an Article 78 proceeding. He claims that the dismissal of proposed plaintiff Santiago's Article 78 petition establishes that it would have been futile for him to bring such a proceeding. Plaintiff asserts that his claims were not time barred because they were tolled by his mental condition at the time he resigned. He also claims that his resignation arose from poor legal advice and from medication he took for his mental condition which made him incoherent, caused him to have an "out of body experience", and rendered him incapable of making well-reasoned decisions.

In a reply affirmation in further support of its motion to dismiss, the City and PPF argue that plaintiff has failed to establish his entitlement to class certification. They further assert that the statute of limitations was not tolled by plaintiff's alleged incapacity.

In its reply affirmation, DEA reiterates that plaintiff failed to set forth any cognizable claim against it.

Conclusions of Law:

Initially, the Court notes that the first amended complaint was not served in accordance with the applicable provisions of the CPLR. CPLR 3025(a) permits a party to serve an amended pleading as of right within 20 days after service of the pleading to be amended, at any time before the time for responding to that pleading expires, or within 20 days after service of a responsive pleading. Here, the motion papers do not reflect that plaintiff amended his complaint as of right within any of the foregoing time periods.^[FN3] His initial complaint was served on or about January 14, 2013 and his first amended complaint was not served until on or about June 5, 2013. Since plaintiff did not serve the first amended complaint within the time to do so as of right, he had to seek court leave to do so [*5]pursuant to CPLR 3025(b). There is no indication in any of the motion papers or the court file that plaintiff obtained, or even sought, this leave. Although plaintiff served his first amended complaint without such leave, and beyond any time period within which he could have amended his complaint as of right pursuant to CPLR 3025(a), the defendants waived any objection to the service of the first amended complaint by failing to reject it. See Moran v Hurst, 32 AD3d 909 (2d Dept 2006); Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678 (1992). Therefore, this Court will consider the allegations in the first amended complaint in deciding this motion.

On a motion to dismiss pursuant to CPLR 3211, the facts as alleged in the complaint are accepted as true, the plaintiff is given the benefit of every possible favorable inference, and the court must determine simply whether the facts alleged fit within any cognizable legal theory. See Ray v Ray, 108 AD3d 449, 451 (1st Dept 2013). However, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration [internal quotation marks and citation omitted]." Silverman v Nicholson, 110 AD3d 1054, 1055 (2d Dept 2013).

The Claims Against The State

The State correctly asserts that the claims in plaintiff's first amended complaint must be dismissed as against it. In order to bring a declaratory judgment action against the State, a plaintiff must allege that the State was either the party responsible for enforcing the challenged statute or was responsible for the imposition of any penalties in connection therewith. See New York State Restaurant Ass'n., Inc. v State, 105 AD2d 619 (1st Dept 1984).Plaintiff does not do so herein. Although plaintiff asserts that the defendants enacted statutes that do not fulfill the intention of the State Legislature, it is not disputed that the statute in question herein was passed by the City and thus plaintiff has failed to state a claim against the State.

The Claims Against The City And The PPF

This Court finds that plaintiff's actions against the City and PPF are barred by the statute of limitations. CPLR Article 78 provides a mechanism by which one can challenge the finding of an administrative body. Here, since plaintiff is challenging the PPF's determination that he is not entitled to the presumption set forth in the WTC Law, an Article 78 proceeding would have been the mechanism pursuant to which he could have challenged the PPF's determination. However, plaintiff did not commence an Article 78 proceeding within four months after February 21, 2007, when the PPF advised him that he was not entitled to benefits under the WTC Law. Thus, he is barred by the four-month statute of limitations from commencing an Article 78 proceeding. See CPLR 217(1).Plaintiff's assertion that this claim could not, or should not, have been brought as an Article 78 proceeding is belied by his own arguments and course of action in this matter. Plaintiff initially attempted to challenge the PPF's denial of his request for benefits pursuant to the WTC Law by means of an Article 78 proceeding. In a July 5, 2012 memorandum of law in support of his Article 78 petition, he cited Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 519-521 (1956) for the proposition that "an Article 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or regulation has been applied in an unconstitutional manner." In his opposition to the motions herein, he concedes that he tried to commence an Article 78 proceeding "on several occasions" but that "[t]he clerks kept citing many [*6]errors" in his papers, eventually leaving him with "no choice but to proceed [to seek the declaratory relief sought in his first amended complaint] under CPLR 3001."^[FN4]

Even though he is pro se, plaintiff's "[c]ouching an adverse administrative decision in terms of a constitutional violation [does] not excuse [him] from pursuing administrative remedies that can provide the requested substantive relief...where resolution of the constitutional claim...rests on factual issues that are reviewable administratively" Siao-Pao v Travis, 23 AD3d 242, 242-243 (1st Dept 2005) (citations omitted); see also Johnson v Markman, 288 AD2d 165 (1st Dept 2001).Although a declaratory judgment action is appropriate "in cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved" (Dun & Bradstreet, Inc. v City of New York, 276 NY 198, 206 [1937]), such is not the case here, where plaintiff's argument raises issues of fact regarding whether he voluntarily resigned from the PPF and whether he was disabled at the time he sought benefits under the WTC Law.

Plaintiff's claims of State HRL violations are also barred by a three-year statute of limitations (see Mejia v Roosevelt Is. Med. Assocs., 95 AD3d 570 [1st Dept 2012]), as are those brought under the City HRL. See Bumpus v New York City Trans. Auth., 66 AD3d 26 (2d Dept 2009).

Since the rights plaintiff is seeking to have adjudicated in this declaratory judgment action, which has a statute of limitations of six years, "could have been raised in a proceeding having a statutorily prescribed limitation period, then that specific limitations period will govern." Marsh v New York State and Local Employees' Retirement System, 291 AD2d 713 (3d Dept 2002). If plaintiff's "claim could have been made in a form other than an action for a declaratory judgment and the limitations period for an action in that form has already expired, the time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief." New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 (1994). Thus, plaintiff's claim, which accrued in February of 2007, is barred by the four-month statute of limitations applicable to Article 78 proceedings and by the three-year statutory limitations applicable to his alleged HRL violations.

Plaintiff's argument that the statute of limitations on his claims was tolled is without merit. CPLR 208 allows the statute of limitations to be tolled for insanity. Although plaintiff maintains that he was mentally disabled following his work at the World Trade Center site, he does not allege, and submits no medical proof that, he was mentally incapacitated either at the time he resigned in 2005 or when the PPF denied him benefits under the WTC Law in February of 2007.

Even assuming, arguendo, that plaintiff's challenges to the constitutionality of the WTC Law were not time barred, they would still fail. Initially, "[a]bsent any statute or contract providing that police officers who have resigned and are no longer members of the PPF have a property interest in [an accidental disability retirement] pension, [plaintiff's] procedural due process claim is without merit." Matter of Santiago v Kelly, supra, at 638. In addition, plaintiff has failed to plead a cognizable constitutional claim under the Fourteenth Amendment since he has not shown that he has [*7]been deprived of substantive due process. See Thomas v Tarpley, 268 AD2d 258 (1st Dept 2000).

Plaintiff also fails to adequately plead an equal protection violation. "[I]n order to succeed on a claim of unequal protection, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion, or some other arbitrary classification'" Commr. of the Dept. Of Social Servs. of the City of New York v Warrington, 308 AD2d 311, 312, quoting Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693 (1979); see also Askin v Dept. of Educ. of the City of New York, 110 AD3d 621, 622 (1st Dept 2013). Here, plaintiff fails to show that the WTC Law was not applied to others similarly situated. On the contrary, the law was clearly applied to others similarly situated: the two proposed additional plaintiffs, Mr. Santiago and Mr. Gilliam, both resigned and were denied benefits under the WTC Law. Even had plaintiff demonstrated that the law was not applied to others similarly situated, he failed to plead that the application of the law was based on an impermissible bias. See Askin v Dept. of Educ. of the City of New York, supra, at 622.

The plaintiff's claim under the ADA must also be dismissed. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 USC § 12132. As the City and the PPF correctly assert, had plaintiff not resigned, he would have been terminated from the NYPD and his PPF membership would have ceased in accordance with Public Officers Law § 30. Therefore, his claim that he was disabled when he resigned is irrelevant. Additionally, it is a bare, conclusory statement lacking even a scintilla of proof. Further, plaintiff failed to show, or even allege, that, if he were disabled, he was denied reasonable accommodations. See Esposito v Altria Group, Inc., 67 AD3d 499 (1st Dept 2009).

To the extent plaintiff purports to move to bring this claim as a class action, his motion must be denied. First, he did not properly move for this relief by notice of motion or notice of cross-motion. See CPLR 2214, 2215.Further, pursuant to CPLR 901(a), "[a] class action in this State must satisfy the prerequisites of numerosity, commonality, typicality, adequacy of representation and superiority." Weinberg v Hertz Corp., 116 AD2d 1 (1st Dept 1986). Here, plaintiff has failed to allege that bringing this claim, involving three plaintiffs, as a class action is "superior to other available methods for the fair and efficient adjudication of the controversy." CPLR 901(a)(5). He merely asserts, in conclusory fashion, that "plaintiffs are seeking a class action or a class of one status" based on the fact that "their situation regarding the incident is similar." However, it is apparent that plaintiff's "situation" is not similar to that of Santiago, whose Article 78 petition seeking an order allowing him to file for a pension under the WTC Law was dismissed, or that of Gilliam, whose petition seeking to vacate his allegedly coerced resignation was dismissed.

Finally, to the extent that plaintiff seeks injunctive relief, it must be denied. In the first amended complaint, "[p]laintiffs request and seek an injunction to amend and/or modify they [sic] [WTC Law] to include plaintiffs." In seeking injunctive relief, plaintiff was required to show a likelihood of success on the merits, irreparable harm, and a balance of equities favoring him. See CPLR 6301; London Terrace Gardens v London Terrace Owners, Inc., 203 AD2d 145 (1st Dept 1994). "[I]njunctive relief is simply not available when the plaintiff does not have any remaining substantive cause of action against [the] defendants." Weinreb v 37 Apartments Corp., 97 AD3d 54, [*8]58-59 (1st Dept 2012). Here, plaintiff has failed to plead the foregoing elements and, in addition, cannot show a likelihood of success on his claims given the foregoing discussion that they are without merit. Thus, plaintiff is not entitled to injunctive relief.

The Claims Against the DEA

It is undisputed that the DEA is a private, not-for-profit organization which, inter alia, negotiates detectives' contracts, administers an annuity fund, and represents members in disciplinary matters, and that it is not a government agency. Since the allegations against DEA are "unsubstantiated" and nothing more than "bare legal conclusions", the complaint against it must be dismissed. See Silverman v Nicholson, 110 AD3d 1054, supra at 1055.

Accordingly, it is hereby:

ORDERED that the motion by defendant the State of New York under sequence number 003 is hereby granted; and it is further,

ORDERED that the motion by defendants the City of New York and the Board of Trustees of the Police Pension Fund under sequence number 004 is granted; and it is further,

ORDERED that the cross-motion by the New York City Detectives' Endowment Association s/h/a Detective Union under sequence number 004 is hereby granted; and it is further,

ORDERED that the first amended complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further,

ORDERED that this constitutes the decision and order of the Court.

DATED: March 4, 2014ENTER:

___________________

Hon. Kathryn E. Freed,

J.S.C.