Eke v. City of New York

Appellate Division of the Supreme Court of New York

Eke v. City of New York

116 A.D.3d 403, 984 N.Y.S.2d 6

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 2014

StatusPublished

This text of 116 A.D.3d 403 (Eke v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eke v. City of New York, 116 A.D.3d 403, 984 N.Y.S.2d 6 (N.Y. Ct. App. 2014).

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Opinion

[404]*404Judgment, Supreme Court, New York County (William E. McCarthy, J.), entered October 2, 2012, after a jury trial, in favor of plaintiff and against defendant the Triborough Bridge and Tunnel Authority (TBTA) in the amount of $25,000, bringing up for review an order, same court and Justice, entered on or about July 10, 2012, which denied TBTA’s motion for a directed verdict, and an order, same court (Donna M. Mills, J.), entered on or about July 17, 2008, which denied TBTA’s motion to dismiss the complaint, unanimously affirmed, without costs.

The motion court properly denied TBTA’s motion to dismiss the complaint. The record supports the court’s determination that TBTA waived the statute of limitations defense by failing to assert it in its answer (see CPLR 3211 [e]).

TBTA’s motion for a directed verdict was also properly denied. While a plaintiffs acceptance of an adjournment in contemplation of dismissal (ACD) precludes a claim for malicious prosecution, it “does not interdict an action for false imprisonment” (Hollender v Trump Vil. Coop., 58 NY2d 420, 423 [1983]; see Scherr v City of Lackawana, 79 AD3d 1785 [4th Dept 2010]). To the extent that our decisions in Molina v City of New York (28 AD3d 372 [1st Dept 2006]) and Hock v Kline (304 AD2d 477 [1st Dept 2003]) hold that acceptance of an ACD prevents the latter claim, they are no longer to be followed. Concur — Mazzarelli, J.E, Friedman, Renwick, Moskowitz and Richter, JJ.

Motion to supplement record denied. Concur — Mazzarelli, J.E, Friedman, Renwick, Moskowitz and Richter, JJ.

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[404]*404Judgment, Supreme Court, New York County (William E. McCarthy, J.), entered October 2, 2012, after a jury trial, in favor of plaintiff and against defendant the Triborough Bridge and Tunnel Authority (TBTA) in the amount of $25,000, bringing up for review an order, same court and Justice, entered on or about July 10, 2012, which denied TBTA’s motion for a directed verdict, and an order, same court (Donna M. Mills, J.), entered on or about July 17, 2008, which denied TBTA’s motion to dismiss the complaint, unanimously affirmed, without costs.

The motion court properly denied TBTA’s motion to dismiss the complaint. The record supports the court’s determination that TBTA waived the statute of limitations defense by failing to assert it in its answer (see CPLR 3211 [e]).

TBTA’s motion for a directed verdict was also properly denied. While a plaintiffs acceptance of an adjournment in contemplation of dismissal (ACD) precludes a claim for malicious prosecution, it “does not interdict an action for false imprisonment” (Hollender v Trump Vil. Coop., 58 NY2d 420, 423 [1983]; see Scherr v City of Lackawana, 79 AD3d 1785 [4th Dept 2010]). To the extent that our decisions in Molina v City of New York (28 AD3d 372 [1st Dept 2006]) and Hock v Kline (304 AD2d 477 [1st Dept 2003]) hold that acceptance of an ACD prevents the latter claim, they are no longer to be followed. Concur — Mazzarelli, J.E, Friedman, Renwick, Moskowitz and Richter, JJ.

Motion to supplement record denied. Concur — Mazzarelli, J.E, Friedman, Renwick, Moskowitz and Richter, JJ.

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Bluebook (online)

116 A.D.3d 403, 984 N.Y.S.2d 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eke-v-city-of-new-york-nyappdiv-2014.

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