Restivo v. Village of Lynbrook

Appellate Division of the Supreme Court of New York

Restivo v. Village of Lynbrook

84 A.D.2d 831, 444 N.Y.S.2d 189, 1981 N.Y. App. Div. LEXIS 16062

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

DecidedNovember 30, 1981

StatusPublished

Cited by4 cases

This text of 84 A.D.2d 831 (Restivo v. Village of Lynbrook) 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

Restivo v. Village of Lynbrook, 84 A.D.2d 831, 444 N.Y.S.2d 189, 1981 N.Y. App. Div. LEXIS 16062 (N.Y. Ct. App. 1981).

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Opinion

In separate actions by Charles Restivo and John Restivo to recover damages for false arrest and false imprisonment “malicious detention” and assault, plaintiffs appeal from an order of the Supreme Court, Nassau County (Robbins, J.), entered June 2, 1980, which granted defendants’ motions to dismiss the complaints, on the ground that plaintiffs had failed to submit to hearings prior to commencement of the actions, as required by the General Municipal Law (§ 50-h). Order affirmed, with $50 costs and disbursements. The complaints allege that plaintiffs were arrested on September 12, 1978, that John Restivo was acquitted on or about June 6,1979 and that Charles Restivo was acquitted on or about November 19, 1979. Thus, the purported Fifth Amendment “disabilities” had terminated prior to the time limitation for commencing suit. We find no merit to plaintiffs’ claim of waiver and estoppel. While the record contains evidence suggesting that the defendant village consented to many adjournments of the hearings with knowledge of, and because of, the pending criminal charges against plaintiffs, and that the village consented to an adjournment on or about the date of commencement of the final criminal trial and to four adjournments made after the final acquittal, the record does not establish that the village was consenting to permit suits to be brought without prior examinations. Lazer, J. P., Gulotta, Cohalan and Bracken, JJ., concur.

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In separate actions by Charles Restivo and John Restivo to recover damages for false arrest and false imprisonment “malicious detention” and assault, plaintiffs appeal from an order of the Supreme Court, Nassau County (Robbins, J.), entered June 2, 1980, which granted defendants’ motions to dismiss the complaints, on the ground that plaintiffs had failed to submit to hearings prior to commencement of the actions, as required by the General Municipal Law (§ 50-h). Order affirmed, with $50 costs and disbursements. The complaints allege that plaintiffs were arrested on September 12, 1978, that John Restivo was acquitted on or about June 6,1979 and that Charles Restivo was acquitted on or about November 19, 1979. Thus, the purported Fifth Amendment “disabilities” had terminated prior to the time limitation for commencing suit. We find no merit to plaintiffs’ claim of waiver and estoppel. While the record contains evidence suggesting that the defendant village consented to many adjournments of the hearings with knowledge of, and because of, the pending criminal charges against plaintiffs, and that the village consented to an adjournment on or about the date of commencement of the final criminal trial and to four adjournments made after the final acquittal, the record does not establish that the village was consenting to permit suits to be brought without prior examinations. Lazer, J. P., Gulotta, Cohalan and Bracken, JJ., concur.

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Bluebook (online)

84 A.D.2d 831, 444 N.Y.S.2d 189, 1981 N.Y. App. Div. LEXIS 16062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/restivo-v-village-of-lynbrook-nyappdiv-1981.

Opinion

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