Alaxanian v. City of Troy

• Decision Date: 12 April 1979
• Citation: Alaxanian v. City of Troy, 415 N.Y.S.2d 293, 69 A.D.2d 937 (N.Y. App. Div. 1979)
• Parties: Thomas ALAXANIAN, Jr., Appellant, v. CITY OF TROY et al., Respondents, and County of Rensselaer, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 293

415 N.Y.S.2d 293

69 A.D.2d 937

Thomas ALAXANIAN, Jr., Appellant, v.CITY OF TROY et al., Respondents and County of Rensselaer, Defendant.

Supreme Court, Appellate Division, Third Department.

April 12, 1979.

James D. Linnan, Albany, for appellant.

Donald C. Bowes, Corp.Counsel, Troy (Donald J. Shanley, Troy, of counsel), for respondents.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (William P. Soronen, Jr., Albany, of counsel), for defendant.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and STALEY, JJ.

MEMORANDUM DECISION.

Appeal (1) from an order of the Supreme Court at Special Term, entered June 22, 1978 in Rensselaer County, which granted a motion by defendants to dismiss the complaint for failure to state a cause of action and denied, in part, plaintiff's cross motion for leave to replead, and (2) from the judgment entered thereon.

This action arises from the arrest of plaintiff by the individual defendants, members of the Troy Police Department, and the subsequent dismissal of the charges.The amended complaint alleges five causes of action, including false arrest, false imprisonment, malicious prosecution, assault and battery, and violation of plaintiff's civil rights.Special Term dismissed all causes of action but permitted plaintiff to replead the second cause of action for assault and battery.This appeal ensued.

Initially, we note that the appeal against the County of Rensselaer has been withdrawn, and thus completely disposes of the cause of action for malicious prosecution.Since the court permitted repleading of the assault and battery cause of action, we will concern ourselves with the remaining three.The record reveals that the notice of claim did not set forth any cause of action for a violation of civil rights.Special Term, therefore, properly dismissed said cause of action since there was a failure to comply with section...