Opinion
11099N M-92402
02-20-2020
Bassey B. NDEMENOH, Claimant–Appellant, v. The CITY UNIVERSITY OF NEW YORK (CUNY)-CITY COLLEGE, Defendant–Respondent.
Bassey B. Ndemenoh, appellant pro se. Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Bassey B. Ndemenoh, appellant pro se.
Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Renwick, J.P., Mazzarelli, Gesmer, Kern, JJ.
Order of the Court of Claims of the State of New York (Jeanette Rodriguez–Morick, J.), entered February 21, 2019, which denied claimant's motion for leave to file a late claim, unanimously affirmed, without costs.
The court correctly determined that July 11, 2018, the date when claimant properly served the Attorney General, was the operative date for determining whether his proposed causes of action were time-barred (see Court of Claims Act § 10[6] ; CPLR 2211, 2214 ; Uniform Civil Rules for the Supreme Court and the County Court [ 22 NYCRR] § 202.8 ; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C2211:4). Since the intentional tort claims for false arrest, false imprisonment and malicious prosecution accrued more than one year earlier, the court correctly held that those proposed causes of action were time-barred (see CPLR 215[3] ; Stampf v. Metropolitan Transp. Auth., 57 A.D.3d 222, 223, 868 N.Y.S.2d 641 [1st Dept. 2008] ; Palmer v. City of New York, 226 A.D.2d 149, 640 N.Y.S.2d 92 [1st Dept. 1996] ).
The court providently exercised its discretion in declining to grant claimant permission to file a late claim for alleged civil rights violations as the record does not provide "reasonable cause to believe that a valid cause of action exists"
( Sands v. State of New York, 49 A.D.3d 444, 444, 853 N.Y.S.2d 555 [1st Dept. 2008] ; see Lerner v. State of New York, 72 A.D.3d 406, 407, 897 N.Y.S.2d 100 [1st Dept. 2010], lv denied 15 N.Y.3d 703, 906 N.Y.S.2d 816, 933 N.E.2d 215 [2010] ).
To the extent claimant's proposed causes of action include a claim based on "confiscation of [his electronic] devices" in connection with his arrests, such claim would sound in conversion (see generally Colavito v.New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713 [2006] ; Torrance Constr., Inc. v. Jaques, 127 A.D.3d 1261, 1263, 8 N.Y.S.3d 441 [3d Dept. 2015] ), and would be subject to a three-year statute of limitations (see CPLR 214[3] ; Swain v. Brown, 135 A.D.3d 629, 631, 24 N.Y.S.3d 598 [1st Dept. 2016] ). Nevertheless, leave should not be given to file a late claim for conversion because the proposed claim is not viable since there was probable cause for his arrests (see Stegemann v. State of New York, 163 A.D.3d 1303, 83 N.Y.S.3d 335 [3d Dept. 2018], lv denied 32 N.Y.3d 909, 91 N.Y.S.3d 356, 115 N.E.3d 628 [2018] ; see also Marrero v. City of New York, 33 A.D.3d 556, 557, 824 N.Y.S.2d 228 [1s Dept. 2006] ).
We have considered claimant's remaining contentions and find them unavailing.