Cunningham v. State
Decision Date | 05 May 1981 |
Docket Number | No. 61891,61891 |
Citation | 422 N.E.2d 821,53 N.Y.2d 851,440 N.Y.S.2d 176 |
Parties | , 422 N.E.2d 821 Patrick J. CUNNINGHAM, Respondent-Appellant, v. STATE of New York, Appellant-Respondent. (Claim) |
Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 77 A.D.2d 756, 431 N.Y.S.2d 178, should be modified, with costs to defendant State of New York, by dismissing claimant's cause of action for abuse of process and, as so modified, affirmed. The question certified is answered in the negative.
The threshold inquiry in regard to claimant's cause of action for abuse of process is whether that claim is timely under subdivision 3 of section 10 of the Court of Claims Act, which provides: Claimant contends, among other things, that his notice of intention was timely because it was filed within 90 days of the dismissal of the indictments which had been found against him. It is clear, however, that the accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor (see Keller v. Butler, 246 N.Y. 249, 158 N.E. 510). Upon the record before us, we must conclude that claimant's notice was untimely.
We have considered claimant's contentions and find them to be without merit.
Order modified, with costs to defendant State of New York, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.
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