Whitmore v. City of New York

Appellate Division of the Supreme Court of New York

Whitmore v. City of New York

61 A.D.2d 795, 401 N.Y.S.2d 864, 1978 N.Y. App. Div. LEXIS 10218

Appellate Division of the Supreme Court of the State of New York·Decided February 6, 1978·Published

Opinion

In Respondent. action to recover damages for false arrest, false imprisonment and malicious prosecution, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 1, 1977, which denied his motion for partial summary judgment. Order affirmed, without costs or disbursements. Plaintiff-appellant’s motion is, in effect, a motion to strike those portions of defendant-respondent’s answer which deny that the city is liable for the torts of the District Attorneys of New York and Kings Counties. The motion [796]*796was properly denied since a motion "to strike as sham” no longer exists under the CPLR (see Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 AD2d 1010). We do not reach the question of whether the immunity accorded a District Attorney inures to the benefit of the city (but see, Schubert v Schubert Wagon Co., 249 NY 253; Carter v Carlson, 447 F2d 358, revd on other grounds sub nom. District of Columbia v Carter, 409 US 418). Martuscello, J. P., Damiani, Titone and Shapiro, JJ., concur.

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In Respondent. action to recover damages for false arrest, false imprisonment and malicious prosecution, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 1, 1977, which denied his motion for partial summary judgment. Order affirmed, without costs or disbursements. Plaintiff-appellant’s motion is, in effect, a motion to strike those portions of defendant-respondent’s answer which deny that the city is liable for the torts of the District Attorneys of New York and Kings Counties. The motion [796]*796was properly denied since a motion "to strike as sham” no longer exists under the CPLR (see Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 AD2d 1010). We do not reach the question of whether the immunity accorded a District Attorney inures to the benefit of the city (but see, Schubert v Schubert Wagon Co., 249 NY 253; Carter v Carlson, 447 F2d 358, revd on other grounds sub nom. District of Columbia v Carter, 409 US 418). Martuscello, J. P., Damiani, Titone and Shapiro, JJ., concur.

Whitmore v. City of New York, 61 A.D.2d 795, 401 N.Y.S.2d 864, 1978 N.Y. App. Div. LEXIS 10218 (N.Y. Ct. App. 1978).

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