Spano v. County of Onondaga

170 A.D.2d 974

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Initially, we note that plaintiff’s notice of appeal is premature because it was filed prior to the issuance and entry of the order from which the appeal is taken (see, Matter of Wayne M. v Francis N, 154 AD2d 837, 839; Matter of Abbott v Conway, 148 AD2d 909, 910, lv denied 74 NY2d 608). Nonetheless, in the exercise of our discretion and in the interest of judicial economy, we address the merits of the appeal (see, CPLR 5520 [c]) and affirm for reasons stated in the decision of Supreme Court, Onondaga County (Reagan, J.).

Furthermore, plaintiff’s cause of action for malicious prosecution against the County of Onondaga was properly dismissed because he served his notice of claim before that cause of action accrued. Plaintiff thereafter failed to serve a notice of claim within 90 days subsequent to the accrual of that cause of action (see, Vitale v Hagan, 71 NY2d 955, rearg denied 72 NY2d 910). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J.—Dismiss Complaint.) Present— Callahan, J. P., Denman, Balio, Lawton and Davis, JJ.