Kramer v. Herrera

Oct 4, 1991
Versions:176 A.D.2d 1241
576 N.Y.S.2d 736
1991 N.Y. App. Div. LEXIS 13978

— Order unanimously affirmed with costs. Memorandum: Supreme Court properly dismissed plaintiff’s cause of action for false arrest. A cause of action for false arrest accrues when the confinement terminates (Collins v McMillan, 102 AD2d 860, 861; Boose v City of Rochester, 71 AD2d 59, 65). The record establishes that plaintiff was arrested on May 30, 1989 and that she was issued an appearance ticket. Plaintiff commenced this action by service of a summons and complaint on July 9, 1990. Since her action for false arrest was commenced more than one year after her cause of action could arguably have accrued, the action is time-barred (CPLR 215 [3]). Moreover, plaintiff acknowledges that she was never held in actual custody by any law enforcement agency as a result of the charge which was filed against her. The service of an appearance ticket does not restrict plaintiff’s freedom and, therefore, does not form a basis for a wrongful arrest claim (Pozzanghera v Anderson, 136 AD2d 912; see also, Pritchett v State of New York, 61 AD2d 1110).

Supreme Court properly dismissed plaintiff’s cause of action for malicious prosecution. A dismissal of a criminal charge in the interest of justice is not a termination of the proceeding in favor of the accused and is insufficient to sustain a cause of action to recover damages for malicious prosecution (see, MacLeay v Arden Hill Hosp., 164 AD2d 228, 230-231, lv denied 77 NY2d 806; Telfer v Friedman, 163 AD2d 857; Davis v State of New York, 124 AD2d 420, 423; Jackson v County of Nassau, 123 AD2d 834, lv denied 69 NY2d 608; Miller v Star, 123 AD2d 750, 751; Kenyon v State of New York, 118 AD2d 942, 943-944). (Appeal from Order of -Supreme Court, Monroe County, Galloway, J. — Dismiss Complaint.) Present — Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.