New York State Court of Claims

New York State Court of Claims

DROZ v. THE STATE OF NEW YORK, #2006-028-533, Claim No. 108142, Motion No. M-70955


Although Claimant alleges his claim for false imprisonment accrued on a certain date and Defendant served a notice to admit that the claim accrued on that same date, it is the Court - not the parties - that determines when a claim accrues. The cause of action for false imprisonment is timely, but causes of action for constitutional violations and malicious prosecution are dismissed.

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:
Defendant’s attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibits

2. Affidavit in Opposition (None received)

Filed papers: Claim; Answer

This claim is based on allegations of false imprisonment (false arrest), malicious prosecution, and violation of Claimant’s constitutional rights, all resulting from an incident that occurred on August 13, 2002 at the Town of Vienna Court in North Bay, New York. On that date, Claimant appeared at the court and was arrested by a State Police Officer after he refused to identify the contents of a package he was carrying. He was subsequently charged with Criminal Contempt in the second degree for disrupting a court proceeding. Claimant then spent two weeks in the Oneida County Jail, until, he alleges, the charges against him were dismissed (Claim, ¶ 4). This claim ensued. Defendant now moves to dismiss the Claim on the ground that all of the causes of action – false imprisonment, malicious prosecution, and constitutional violations – lack merit and/or fall outside the jurisdiction of this Court.

Constitutional tort: The Court of Claims does not have jurisdiction to hear actions based on alleged violation of rights guaranteed by the United States Constitution, because the State is not a “person” amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]). In some rare instances, alleged violation of rights guaranteed by the New York State Constitution can give rise to a tort claim. This occurs only when (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see Brown v State of New York, 89 NY2d 172 [1996]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]). Claimant fails even to identify the constitutional provision or right on which he relies, and, in any event, if one assumes that his allegations were true, he had an adequate remedy available in the bringing of suit for malicious prosecution and/or false imprisonment.

Malicious Prosecution: The elements of a cause of action for malicious prosecution are (1) commencement of a criminal proceeding against a claimant, (2) termination of the proceeding in favor of the accused, (3) absence of probable cause for the proceeding, and (4) actual malice (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001], citing Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]). Although Claimant alleges that his claim was “dismissed” when he left jail on or about August 27, 2002, the official Certificate of Conviction (Marmelstein Affirmation, Exhibit D) indicates that on that date, the charge against him was adjourned in contemplation of dismissal. It appears that he was not rearrested or charged with another crime during the following six months, since the Certificate also reflects that the charge was fully dismissed on February 27, 2003.

For a criminal proceeding to be “terminated in favor” of the party being prosecuted, the final disposition must be one that “indicates” innocence (Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426 [1983], quoting Restatement, Torts 2d, § 660 Comment a). An adjournment in contemplation of dismissal “is not an adjudication of guilt or innocence and bars recovery in a claim for malicious prosecution” (Witcher v Children's Television Workshop

187 AD2d 292 [1st Dept 1992], citing Hollender v Trump Vil. Coop., supra ).

False Arrest/Imprisonment: To establish a cause of action for false arrest, the Claimant must show that 1) the Defendant intended to confine him; 2) the Claimant was conscious of the confinement; (3) the Claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged (Blanchfield v State of New York, 104 Misc 2d 21, 24 Ct Cl) . Defendant asserts that this cause of action must be dismissed because it is untimely.
As indicated above, Claimant was arrested on August 13, 2002 and released from custody on or about August 27, 2002. He served a Notice of Intention to file a claim on the Attorney General on October 28, 2002. The Claim was subsequently filed with the Clerk of the Court on August 13, 2002 and served on the Attorney General on August 22, 2002. Both the Notice of Intention and the Claim allege that all of Claimant’s causes of action accrued on August 13, 2003. In addition, defense counsel served on Claimant a Notice to Admit which consisted of a single statement: “The Claim accrued on August 13, 2002.” Inasmuch as Claimant has failed to respond to this notice, counsel argues, this should be deemed admitted (CPLR 3123[a]).
There is a critical flaw with Defendant’s argument. The date on which a cause of action accrues is not controlled by a party’s allegations, nor can it be fixed by stipulation or a party’s admission (CPLR 3123[a]). Although identifying the actual dates on which certain critical events took place may be a factual inquiry, defining the event(s) that constitute accrual for each of the many individual causes of action is a legal inquiry. The parties may present arguments as to what the accrual date should be in a given situation, but it is the Court’s responsibility to make the ultimate determination (see e.g. Kronos, Inc. v AVX Corp., 81 NY2d 90 [1993]; Konigsberg v State of New York, 256 AD2d 982 [3d Dept 1998]; Rajter v Local 294 Affiliated with Intl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 233 AD2d 559 [3d Dept 1996]; Local 851 of Intl. Bhd. of Teamsters v State of New York, 7 Misc 3d 1013(A) [Ct Cl 2005]).

In New York, as in most other states, a cause of action for false imprisonment accrues when the complained-of confinement ends (Caminito v City of New York, 19 NY2d 931 [1967]; Schildhaus v City of New York, 17 NY2d 853 [1966]; 59 NY Jur 2d False Imprisonment § 125). In this instance, therefore, the date of accrual was August 27, 2002. The Notice of Intention was timely served within 90 days (October 28, 2002), and the Claim was filed and served within one year of the date of accrual (August 13 and 22, 2003). Claimant’s cause of action for false imprisonment is timely.

Defendant’s motion to dismiss is GRANTED with respect to the causes of action for constitutional violations and malicious prosecution and DENIED with respect to the cause of action for false imprisonment.

March 21, 2006
Albany, New York

Judge of the Court of Claims