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Cunningham v. State of New York

Court of Appeals of the State of New York
May 5, 1981
53 N.Y.2d 851 (N.Y. 1981)

Opinion

Argued March 26, 1981

Decided May 5, 1981

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JEROME F. HANIFIN, J.

Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for appellant-respondent.

Marc S. Krieg for respondent-appellant.


MEMORANDUM.

The order of the Appellate Division should be modified, with costs to defendant State of New York, by dismissing claimant's cause of action for abuse of process and, as so modified, affirmed. The question certified is answered in the negative.

The threshold inquiry in regard to claimant's cause of action for abuse of process is whether that claim is timely under subdivision 3 of section 10 CTC of the Court of Claims Act, which provides: "3. A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim." Claimant contends, among other things, that his notice of intention was timely because it was filed within 90 days of the dismissal of the indictments which had been found against him. It is clear, however, that the accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor (see Keller v Butler, 246 N.Y. 249). Upon the record before us, we must conclude that claimant's notice was untimely.

We have considered claimant's contentions and find them to be without merit.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

Order modified, with costs to defendant State of New York, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


Summaries of

Cunningham v. State of New York

Court of Appeals of the State of New York
May 5, 1981
53 N.Y.2d 851 (N.Y. 1981)
Case details for

Cunningham v. State of New York

Case Details

Full title:PATRICK J. CUNNINGHAM, Respondent-Appellant, v. STATE OF NEW YORK…

Court:Court of Appeals of the State of New York

Date published: May 5, 1981

Citations

53 N.Y.2d 851 (N.Y. 1981)
440 N.Y.S.2d 176
422 N.E.2d 821

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