New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2004-032-116, Claim No. 109541, Motion Nos. M-68847, CM-68983


Claims for malicious prosecution and false imprisonment are dismissed as untimely.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
David Russell, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Although there is a motion and cross-motion before the Court, the principal issue to be determined is whether Claim No. 109541 should be dismissed because it is untimely.[1]

The claim sets forth causes of action for false arrest and malicious prosecution arising from events that took place between September 23, 2002 and March 26, 2003. In September 2002, he was arrested by an officer of the New York State Police on charges that he had assaulted a correction officer at Upstate Correctional Facility in January 2002, as a result of an indictment handed down by a Franklin County Grand Jury in August 2002.[2]

Claimant states that he was handcuffed, fingerprinted and required to give information about his personal history at the State Police station in Malone, New York. He does not allege that he was retained in police custody overnight (Claim, ¶ 2). He was arraigned on the same day that he was arrested (Claim, ¶ 26). Claimant elected to serve as his own attorney and took part in discussion of a plea agreement with the Franklin County District Attorney. During the course of a pre-trial conference, claimant learned that a videotape of the interview between claimant and the Bureau of Criminal Investigation officers, which claimant contends was exculpatory, had not been presented to the Grand Jury.

Claimant then sought to inspect the Grand Jury minutes, to see if other evidence had been presented to that body. Based upon the review of those minutes, the indictment against him was dismissed because of prejudicial statements that were made by a complaining witness to the Grand Jury. Subsequently, the District Attorney informed the trial court, in writing, that he had determined the matter would not be re-presented to the Grand Jury. On March 26, 2003, as a result of the District Attorney's decision, the County Judge rescinded and vacated the securing order that had been issued against claimant.

As defense counsel acknowledges, claimant served a notice of intention to file a claim on the Attorney General on April 21, 2003, and he served an amended notice of intention on June 20, 2003. As indicated in footnote 1, claimant filed his claim on June 28, 2004 and served it on July 28, 2004. Counsel for defendant now moves for an order dismissing the claim on the ground that it is untimely.

Both false arrest and malicious prosecution are intentional torts and, thus, they are governed by section 10(3-b) of the Court of Claims Act. That provision requires that a notice of intention be served (or a claim served and filed) within 90 days after a claim accrues and, further, that if a notice of intention is employed, the claim itself be filed and served within one year of the date of accrual. This time limitation is in keeping with the one year Statute of Limitations applicable to those torts (CPLR 215[3]). A cause of action for false arrest accrues on the date that the arrested party is released from custody, which in this case appears to have been September 23, 2002. Neither a notice of intention nor a claim was filed and/or served within the ninety day period following this date, and thus that portion of the claim is untimely. Because of the one year Statute of Limitations applicable to the tort of false arrest, claimant also cannot take advantage of the relief of late filing, for section 10(6) of the Court of Claims Act requires that such a motion be commenced within the applicable CPLR, Article 2 Statute of Limitations.

An action for malicious prosecution accrues when the underlying criminal action terminated in favor of the proposed claimant (Campo v Wolosin, 211 AD2d 660, 660). This apparently occurred on March 26, 2003.[3] Consequently, both the April 21 and June 20 notices of intention were served within the ninety days following that date. Malicious prosecution, however, is an intentional tort, and, as is the case with claims based on false arrest, the claim had to be filed and served within one year, or by March 26, 2004. This step did not occur until June and July, and, accordingly, the claim must be dismissed.

Defendant's cross-motion is granted and Claim No. 109541 is dismissed. Claimant's motion is denied as moot. Because it appears that the videotape sent to the Court in support of claimant's motion may be the original copy, the Clerk's Office is requested to return it to claimant.

November 23, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for permission to file an untimely claim and on defendant's cross-motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of David Russell, pro se;

2. Notice of Cross-Motion and Supporting Affirmation of Michele M. Walls, Esq., AAG, with annexed Exhibits;

3. Response Affidavit of David Russell, pro se, with annexed exhibit and videotape;

Filed papers: Claim

[1] Depending on how the issue of timeliness is resolved, claimant's motion for permission to late file may be irrelevant. On June 28, 2004 claimant filed a claim, which was designated Claim No. 109541, but a copy of the claim was not served on the Attorney General until a month later, on July 28, 2004. Apparently claimant tried to effect service on the Attorney General at the same time that he filed the claim, but the first copy sent to the State was not served because claimant had failed to provide sufficient information to prison authorities when he requested an advance disbursement for its postage. His second attempt to serve the claim was successful, but the claim was then rejected as a nullity because it was not verified. Claimant thereafter succeeded in serving a verified copy of the claim, which was received by the Attorney General on July 28, 2004. Claimant's motion for permission to late file (Motion No. M-68847), therefore, was brought in connection with this delay in service. Consequently, the Court is prepared to assume that claimant made a good faith effort to serve the claim at the same time that he filed it with the Clerk of the Court, on June 28, 2004. The motion to late file need be considered only if the one month delay in service, from June 28 to July 28, is critical to the issue of timeliness.
[2] There is some question as to whether a proper warrant was issued for claimant's arrest (claim, ¶¶22-24, Exhibit A).
[3] Although the Grand Jury indictment was dismissed a month earlier, apparently the prosecution was not formally terminated until that date.