Kramerv.Herrera

Appellate Division of the Supreme Court of New York, Fourth DepartmentOct 4, 1991
576 N.Y.S.2d 736 (N.Y. App. Div. 1991)
576 N.Y.S.2d 736176 A.D.2d 1241

October 4, 1991

Appeal from the Supreme Court, Monroe County, Galloway, J.

Present — Callahan, A.P.J., Denman, Pine, Balio and Lawton, JJ.


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 A.D.2d 860, 861; Boose v City of Rochester, 71 A.D.2d 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). 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 A.D.2d 912; see also, Pritchett v State of New York, 61 A.D.2d 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 A.D.2d 228, 230-231, lv denied 77 N.Y.2d 806; Telfer v Friedman, 163 A.D.2d 857; Davis v State of New York, 124 A.D.2d 420, 423; Jackson v County of Nassau, 123 A.D.2d 834, lv denied 69 N.Y.2d 608; Miller v Star, 123 A.D.2d 750, 751; Kenyon v State of New York, 118 A.D.2d 942, 943-944).