74 A.D.2d 998 | N.Y. App. Div. | 1980
Judgment unanimously affirmed, without costs, Memorandum: On May 7, 1976 plaintiff was arrested upon a warrant accusing him of the commission of the crime of grand larceny in the third degree. The warrant was issued on an accusatory instrument consisting of an information complaint sworn to by Investigator Hudson of the New York State Police and a supporting deposition alleging that plaintiff had issued certain bad checks. Plaintiff was released on bail on May 8, 1976 and the charges were dismissed on November 2, 1976 based on his claim that the checks were accepted as "extensions of credit and formed no basis for a crime”. Plaintiff filed a notice of claim against the State on January 20, 1977. Plaintiff appeals from a judgment of the Court of Claims dismissing his claim for false arrest, malicious prosecution and defamation after a trial of the issues. He claims that the checks in question, which were issued on October 14, 1975, were deposited by the payee on November 20, 1975 contrary to an agreement between the parties that the checks were to be held for a later deposit; that an investigation by the State Police would have revealed that no crime had been committed; that his notice of claim against the State was timely filed; and that he is entitled to recover damages on his claim for false arrest and malicious prosecution. The court properly dismissed the cause of action for false arrest. The supporting information and deposition contain no allegation that plaintiff intended to commit the crime of issuing a bad check or that at the time of uttering the checks he intended or believed that payment would be refused by the drawee upon presentation (Penal Law, § 155.05, subds 1, 2, par [c]; § 190.05, subd 1). Thus, the information was insufficient on its face and the warrant was improperly issued (CPL 100.15, subd 3; 100.40, subd 1, par [c]; 120.20, subd 1; see, also, People v Hall, 48 NY2d 927). However, the general rule that an arrest made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person, even though erroneously or improvidently issued, gives rise only to a cause of action for malicious prosecution applies in this case (Broughton v State of New York, 37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 US 929; Boose v City of Rochester, 71 AD2d 59, 66). Investigator Hudson obtained immunity from the warrant. He did not knowingly mislead the court or supply any false information to support its issuance (cf. Ross v Village of Wappingers Falls, 62 AD2d 892). In any event, the claim accrued at the latest upon plaintiff’s release from custody on May 8, 1976 and became time barred when no timely notice of