McCoy v. Travelers Insurance

152 A.D.2d 955, 543 N.Y.S.2d 840, 1989 N.Y. App. Div. LEXIS 9844

Opinion

Order unanimously affirmed without costs. Memorandum: The court properly dismissed plaintiff’s complaint against the City of Rochester alleging causes of action for false arrest, constitutional violations, malicious prosecution, abuse of process, negligent and intentional infliction of emotional distress, libel, and slander. Only the basis for the dismissal of the cause of action for malicious prosecution requires comment. This cause of action did not accrue until April 28, 1983, when defendant was acquitted of criminal charges. Thus, the notice of claim alleging malicious prosecution filed on July 20, 1982 was premature (see, Vitale v Hagan, 71 NY2d 955, rearg denied 72 NY2d 910; Hines v City of Buffalo, 79 AD2d 218, 225). Although defendant attached a copy of the notice of claim to the complaint, he did not purport to serve a new notice of claim. In any event, even if the service of the copy with the complaint is considered to be the service of a new notice of claim, the service of the notice with the complaint would not comply with the requirement that an action may not be commenced until at least 30 days have elapsed since service of the notice of claim (see, General Municipal Law § 50-i [1]). (Appeal from order of Supreme Court, Monroe County, Patlow, J. — summary judgment.) Present — Doerr, J. P., Denman, Boomer, Balio and Lawton, JJ.