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.
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
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
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Judge rescinded and vacated the securing order that had been issued against
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). 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,
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.
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
Filed papers: Claim