Opinion
16390 Index No. 32872/18E Case No. 2021–04428
10-11-2022
Pia MCQUEEN, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants–Respondents, Other New York City Police Officers Under Docket #2014BX065976 Whose Names are Not Known at This Time named herein as John/Jane Doe I–IV, as it Pertains to the Arrest of December 15, 2014 for an Incident that Allegedly Occurred on June 16, 2012 and No Other, Defendants.
Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation counsel, New York (Geoffrey M. Stannard of counsel), for respondents.
Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation counsel, New York (Geoffrey M. Stannard of counsel), for respondents.
Gische, J.P., Kern, Gesmer, Rodriguez, Pitt, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered July 20, 2021, which, to the extent appealed from as limited by the briefs, granted so much of the motion of defendants City of New York and Detective Salvator Giardina (collectively defendants) as was to dismiss plaintiff's fifth cause of action for malicious prosecution, so much of her sixth cause of action, pursuant to 42 USC § 1983, as was for false arrest and false imprisonment against Giardina, and her seventh and eighth causes of action for negligent training and negligent hiring and supervision, respectively, against defendants Other New York City Police Officers Under Docket # 2014BX065976 Whose Names Are Not Known At This Time, etc. (John Doe defendants), unanimously affirmed, without costs.
New York State common-law claims for false arrest and false imprisonment accrue on the date that the plaintiff is released from custody (see e.g. Palmer v. City of New York, 226 A.D.2d 149, 149, 640 N.Y.S.2d 92 [1st Dept. 1996] ). However, false arrest and false imprisonment claims brought pursuant to 42 USC § 1983 accrue "once the victim becomes held pursuant to [legal ] process – when, for example, he is bound over by a magistrate or arraigned on charges. Thereafter, unlawful detention forms part of the damages for the ‘entirely distinct’ tort of malicious prosecution" ( Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 [2007] [internal citations omitted]). In this case, the record discloses that plaintiff was arrested on December 15, 2014, and indicted on December 18, 2014. Her false arrest and false imprisonment claims pursuant to 42 USC § 1983 therefore accrued no later than December 18, 2014. Since those claims are subject to a three-year statute of limitations (see e.g. Higgins v. City of New York, 144 A.D.3d 511, 512, 43 N.Y.S.3d 1 [1st Dept. 2016] ), the statute of limitations expired by December 18, 2017. Since this action was not commenced until November 9, 2018, Supreme Court correctly dismissed plaintiff's 42 USC § 1983 –based false arrest and false imprisonment claims against Giardina as time-barred (see Cruz v. City of New York, 148 A.D.3d 617, 617–618, 50 N.Y.S.3d 359 [1st Dept. 2017] ).
Plaintiff's negligent training and negligent hiring and supervision claims were also correctly dismissed as time-barred, since those claims, too, accrued on the date of her arrest (see O'Dell v. County of Livingston, 174 A.D.3d 1307, 1309, 103 N.Y.S.3d 730 [4th Dept. 2019] ; Murray v. City of New York, 283 A.D.2d 560, 561, 725 N.Y.S.2d 73 [2d Dept. 2001] ), and she neither filed her notice of claim within 90 days thereof (see General Municipal Law § 50–e [1][a] ) nor commenced this action within one year and 90 days thereof (see General Municipal Law § 50–i[1] ). In view of the forgoing, we need not reach defendants’ alternative argument regarding respondeat superior.
Plaintiff's malicious prosecution claim was also correctly dismissed. "Where there is an indictment, there is a presumption of probable cause. The complaint must therefore allege specific facts to overcome the effect of the indictment" ( Smith v. County of Livingston, 69 A.D.2d 993, 994, 416 N.Y.S.2d 130 [4th Dept. 1979] ; see generally Colon v. City of New York, 60 N.Y.2d 78, 82–83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983] ). Because the complaint only conclusorily alleges that the prosecution of plaintiff was commenced and maintained with malice, it fails to state a claim for malicious prosecution (see Alexander v. Scott, 286 A.D.2d 692, 693, 730 N.Y.S.2d 254 [2d Dept. 2001] ; Mondello v. Mondello, 161 A.D.2d 690, 690, 555 N.Y.S.2d 826 [2d Dept. 1990] ; Hornstein v. Wolf, 109 A.D.2d 129, 132–133, 491 N.Y.S.2d 183 [2d Dept. 1985], affd 67 N.Y.2d 721, 499 N.Y.S.2d 938, 490 N.E.2d 857 [1986] ; Smith, 69 A.D.2d at 994, 416 N.Y.S.2d 130 ).