Elkin v. Cassarino

248 A.D.2d 35, 680 N.Y.S.2d 601, 1998 N.Y. App. Div. LEXIS 12392
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 16, 1998
StatusPublished
Cited by12 cases

This text of 248 A.D.2d 35 (Elkin v. Cassarino) 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
Elkin v. Cassarino, 248 A.D.2d 35, 680 N.Y.S.2d 601, 1998 N.Y. App. Div. LEXIS 12392 (N.Y. Ct. App. 1998).

Opinion

OPINION OF THE COURT

Florio, J.

On this appeal we consider for the first time the issue of whether the one-year Statute of Limitations under CPLR 215 for intentional torts can be tolled by CPLR 213-b under the circumstances presented here. Because we conclude that it can, we find that the instant proceeding was timely commenced. Furthermore, upon examining the record, we also conclude that the plaintiffs motion for summary judgment on the issue of liability was properly granted.

On October 10, 1991, the plaintiff Michelle Elkin was attacked and robbed by accomplices of the defendant, Rocco Cassarino. The following day the defendant assisted in selling the plaintiffs stolen jewelry. The defendant was apprehended in. November 1994, and in September 1996, after a jury trial in the United States District Court for the Eastern District of New York, he was convicted, in connection with the robbery, of conspiring to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, by robbery, as well as knowingly and intentionally obstructing, delaying, and affecting commerce, by robbery, in violation of 18 USC § 1951. The evidence at the Federal trial established that the defendant’s accomplices beat and punched the plaintiff and stole a quantity of jewelry from her. At his Federal trial, the [37]*37defendant’s accomplices testified that the robbery was entirely the defendant’s idea. He had planned the crime, recruited them to commit it, provided the weapons for it, and assisted them in selling the stolen jewelry. The defendant was sentenced in February 1997 and is presently serving a term of 108 months in Federal custody.

In November 1996 the plaintiff commenced this action within the time period provided for in CPLR 215 (8), seeking to recover damages for assault and conversion in connection with the defendant’s actions in the robbery. In December 1996 the defendant responded by moving to dismiss the complaint on the ground that the plaintiff could not use the tolling period set forth in CPLR 215 (8). He contended that CPLR 215 (8) does not apply to criminal actions commenced in the Federal courts, but only to criminal actions commenced in a New York State “criminal court”.

In January 1997 the plaintiff cross-moved to amend her complaint, so as to add CPLR 213-b as an additional basis to toll the relevant Statute of Limitations. Additionally, she cross-moved for summary judgment on the issue of liability, contending that her causes of action to recover damages for assault and conversion arose out of the same event and occurrence as formed the basis of the defendant’s Federal criminal convictions. Thus, the defendant has no defense to this action, and there are no triable issues of fact. Therefore, based on the doctrine of collateral estoppel, the plaintiff is entitled to judgment on the issue of liability.

In opposition to the cross motion, the defendant maintained that the plaintiff was not entitled to rely upon CPLR 213-b to extend her time to commence this action. He argued, as he did in his main motion, that this section is not applicable to criminal actions prosecuted in Federal courts. He argued that, as with CPLR 215 (8), CPLR 213-b also does not apply because the Legislature intended that the statute apply only where the defendant was convicted in a New York State court of a crime defined by the laws of New York, and not where, as here, the defendant was convicted of a Federal offense in a Federal court.

The Supreme Court, in a very terse decision, denied the defendant’s motion to dismiss the complaint as untimely, and granted the plaintiff’s cross motion for summary judgment on the issue of liability, also impliedly granting her application to amend her complaint so as to add the allegation that CPLR 213-b is applicable to this action. On appeal, the defendant argues that this was error. We disagree.

[38]*38CPLR 213-b, entitled “Action by a victim of a criminal offense”, is applicable to civil actions commenced on or after July 24, 1992 (L 1992, ch 618). It provides: “Notwithstanding any other limitation set forth in this article or in article five of the [EPTL], an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime” (CPLR 213-b).

Contrary to the defendant’s contention, CPLR 213-b does not expressly or impliedly mandate that the “crime” in question be a conviction in a New York State Court, or one defined by the laws of the State of New York. It does not specifically define “crime”, does not limit the crimes to which it is applicable, and does not limit the term “crime victim”.

Nor is there any basis, as the defendant argues, for importing the definition of “crime” as defined in Executive Law § 632-a (1) (a), merely because that law, which limits “crime” to felonies defined in the Penal Law or other laws of New York State, was enacted simultaneously with CPLR 213-b. The two statutes serve two totally different purposes. Executive Law § 632-a (1) (a) is part of the statute setting forth which crimes, and under what circumstances, New York State may provide some monetary compensation to, inter alia, crime victims. There, by reference to the Penal Law, the Legislature specifically limited and defined the crimes for which New York would recompense the injuries and losses suffered by certain of its citizens. Such a limitation on expenditures from the public fisc is eminently practical and sensible.

In contrast, in enacting CPLR 213-b, which does not require the expenditure of public funds, the Legislature did not add such a definition, nor did it refer to the Penal Law or the aforementioned section of the Executive Law. Clearly, the Legislature could have expressly made reference to Executive Law § 632-a (1) (a), if it had so wanted to define “crime” (see, Matter of Jamie D., 59 NY2d 589). Since it did not do so, it follows that the terms “crime” and “crime victim” were not intended to be restricted as they are in the Executive Law.

Moreover, appellate courts in this State have often found that a broad interpretation of a statute is warranted in order to conform to the legislative intent in enactment thereof. Thus, in People v Hodges (246 AD2d 824), the Appellate Division, [39]*39Third Department, interpreted Penal Law § 170.25 broadly to conform to the Legislature’s intentions. In contrast, in Palmer v Rouse (232 AD2d 909), that same Court refused to use a broad interpretation of Vehicle and Traffic Law § 388, finding such an interpretation would defeat the legislative purpose of the statute. Additionally, in Carlone v Adduci (222 AD2d 754, 756), the Third Department again stated that the courts are to interpret statutes “in light of the statutory purpose in enacting” the specific legislation.

This interpretation of the legislative intent is also bolstered by the legislative history contained in the Bill Jacket accompanying the enactment of CPLR 213-b. In examining that legislative history, we note first that according to Emanuel R. Gold, then the Deputy Minority Leader, in writing to the Honorable Elizabeth D.

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Cite This Page — Counsel Stack

Bluebook (online)
248 A.D.2d 35, 680 N.Y.S.2d 601, 1998 N.Y. App. Div. LEXIS 12392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elkin-v-cassarino-nyappdiv-1998.