Schoonmaker v. State

94 A.D.2d 741, 462 N.Y.S.2d 494, 1983 N.Y. App. Div. LEXIS 18192

Opinion

— The appeal is from an order of the Court of Claims (Lengyel, J.), dated July 28, 1982, which, inter alia, denied a cross motion to dismiss a claim for damages, inter alia, for false arrest and malicious prosecution. Order affirmed, without costs or disbursements. Upon the present posture of this case, the Court of Claims properly determined that there exists a factual dispute with respect to the circumstances of the termination of the underlying proceedings sufficient to bar summary judgment on the issue of malicious prosecution (see Loeb v Teitelbaum, 77 AD2d 92, 98, 101; cf. Whitmore v City of New York, 80 AD2d 638, 639, mot for Iv to app dsmd 54 NY2d 753). The appellants’ contention that the claim, which was filed more than one year, but within two years, from the date of accrual, is barred by the one-year Statute of Limitations applicable to intentional tort actions (see CPLR 215, subd 3) was not raised upon the cross motion to dismiss. The issue is therefore not properly before this court. Titone, J. P., Lazer, Weinstein and Boyers, JJ., concur.