Jemison v. Crichlow

• Decision Date: 18 July 1988
• Citation: 531 N.Y.S.2d 919,139 A.D.2d 332
• Parties: Mamie R. JEMISON, etc., et al. Appellants, v. Grantley E. CRICHLOW, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 919

531 N.Y.S.2d 919

139 A.D.2d 332

Mamie R. JEMISON, etc., et al. Appellants, v. Grantley E. CRICHLOW, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 18, 1988.

Joel A. Siegel, New York City, for appellants.

Harry Blum, Brooklyn, for respondent Crichlow.

Before MANGANO, J.P., and BRACKEN, LAWRENCE, and SPATT, JJ.

BRACKEN, Justice.

CPLR 215(1) provides, with one exception not relevant here, that any action against a sheriff based "upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty" must be commenced within one year of the accrual of the cause of action. In the present case, the plaintiffs seek to avoid a dismissal of their several causes of action by arguing, first, that the one-year Statute of Limitations contained in CPLR 215(1) does not apply to City Marshals such as the defendant Grantley E. Crichlow (hereinafter Crichlow), and, second, that that Statute of Limitations does not apply where the asserted causes of action are based on allegations of intentional or malevolent misconduct.

This court having recently decided that CPLR 215(1) does, in fact, apply to City Marshals as well as Sheriffs ( Kolomensky v. Wiener, 135 A.D.2d 505, 522 N.Y.S.2d 156, lv. denied 72 N.Y.2d 873, 532 N.Y.S.2d 365, 528 N.E.2d 517 [1988] ), we need not pause long before resolving the first issue against the plaintiffs. For the reasons stated below, we also reject the plaintiffs' alternative argument that, contrary to its plain terms, CPLR 215(1) should be read so as to, in effect, except from its scope actions in which the misconduct alleged may be characterized as malicious. We therefore conclude that all but one of the plaintiffs' causes of action are barred by the provisions of CPLR 215(1).

I

The plaintiffs allege, in their complaint, that Crichlow, a City Marshal and licensed process server, forcibly evicted them from their apartment on West 31st Street, Brooklyn, New York, on April 11, 1983, pursuant to a judgment of the Civil Court, Kings County, which had been entered upon their default. It is further alleged that prior to the execution of the judgment of the Civil Court, Crichlow had filed with that court an affidavit which falsely stated that he had previously served a dispossess notice upon the plaintiffs. It is also alleged that "[a]ll acts and omissions complained of defendant Crichlow herein were undertaken and conducted intentionally, deliberately, willfully, knowingly and voluntarily". The complaint also contains the allegation that the "defendant Crichlow performed his duties in a negligent manner".

Based upon these allegations, among others, the plaintiffs sought a money judgment against Crichlow, for both compensatory and punitive damages, upon the following theories: (1) wrongful eviction, (2) conversion, (3) trespass to property, (4) trespass to chattels, (5) prima facie tort, (6) intentional infliction of emotional distress, (7) intentional interference with contractual and economic relations, (8) negligence, and (9) violation of the plaintiffs' constitutional rights (42 U.S.C. § 1983).

By notice of motion dated July 14, 1986, Crichlow applied for an order dismissing the complaint as against him on the basis that it was barred by the Statute of Limitations (CPLR 3211[a][5]; 215[1] ) and on the additional basis that it failed to state a cause of action (CPLR 3211[a][7] ). In support of the motion, Crichlow's attorney averred that the summons and complaint were served on him on June 6, 1986, more than three years after the causes of action contained in the complaint had accrued.

In opposition to the motion, the plaintiffs' attorney stated that on April 10, 1986, one day before the expiration of the three-year Statute of Limitations (CPLR 214), he filed a summons in the office of the Clerk of the Supreme Court, Kings County, where the instant action is pending, and where Crichlow allegedly does business, so as to obtain a 60-day extension pursuant to CPLR 203(b)(5). The record contains a copy of this summons, dated April 9, 1986, which includes a brief notice as to the nature of the action (see, CPLR 305[b]; Frerk v. Mercy Hosp., 63 N.Y.2d 635, 479 N.Y.S.2d 519, 468 N.E.2d 701). Crichlow does not contend that Kings County is not his place of business, and acknowledges that he was subsequently served with the summons on June 6, 1986.

Special Term agreed with Crichlow that the plaintiffs' several causes of action were all barred by the Statute of Limitations set forth in CPLR 215(1). We conclude that the first eight of the plaintiffs' claims were properly dismissed as time-barred, but that the order under review should be modified so as to reinstate the plaintiffs' ninth cause of action.

II

By filing a copy of a summons with notice with the Clerk of the Supreme Court, Kings County, within three years of their eviction, and by subsequently serving a copy of a summons with notice on Crichlow within 60 days of when the three-year Statute of Limitations would otherwise have run, the plaintiffs are deemed to have interposed their claims within three years of the accrual of their causes of action (CPLR 203[b][5][i] ). Thus, those claims which are governed by a three-year Statute of Limitations (CPLR 214) have been timely interposed, while those governed by a one-year Statute of Limitations (CPLR 215) are time-barred. Before addressing the applicability of CPLR 215(1), which provides a one-year Statute of Limitations for certain actions brought against certain public official it will be helpful to identify the Statutes of Limitation which ordinarily would apply, in general, to the plaintiffs' several claims.

The plaintiffs' first cause of action for wrongful eviction is governed by a one-year Statute of Limitations and is therefore time-barred irrespective of the applicability of CPLR 215(1). This Court held, in Kolomensky v. Wiener (supra) that the one-year Statute of Limitations which governs intentional torts (CPLR 215[3] ) applies to causes of action for wrongful eviction. Similarly, the plaintiffs' seventh cause of action for intentional infliction of emotional distress is also governed by a one-year Statute of Limitations and so is time-barred ( see, Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 105 A.D.2d 1149, 1151, 482 N.Y.S.2d 606; Schulman v. Krumholz, 81 A.D.2d 883, 439 N.Y.S.2d 160). Those causes of action were therefore properly dismissed.

The plaintiffs' other seven claims, aside from consideration of CPLR 215(1), involve three-year Statute of Limitations. Claims for conversion, trespass to property, and trespass to chattels, are all "action[s] to recover damages for an injury to property" governed by CPLR 214(4) ( see, Sporn v. MCA Records, 58 N.Y.2d 482, 462 N.Y.S.2d 413, 448 N.E.2d 1324; 509 Sixth Ave. Corp. v. New York City Tr. Auth., 15 N.Y.2d 48, 255 N.Y.S.2d 89, 203 N.E.2d 486). It has also been held that the tort of intentional interference with contractual relations involves an injury to property governed by the three-year Statute of Limitations of CPLR 214(4) ( see, Rolnick v. Rolnick, 29 A.D.2d 987, 290 N.Y.S.2d 111, affd. 24 N.Y.2d 805, 300 N.Y.S.2d 586, 248 N.E.2d 442; Kartiganer Assoc. v. Town of New Windsor, 108 A.D.2d 898, 899, 485 N.Y.S.2d 782, app. dismissed 65 N.Y.2d 925; Van Dussen-Storto Motor Inn v. Rochester Tel. Corp., 63 A.D.2d 244, 407 N.Y.S.2d 287; Frigi-Griffin, Inc. v. Leeds, 52 A.D.2d 805, 806 n. 2, 383 N.Y.S.2d 339; Von Ludwig v. Schiano, 23 A.D.2d 789, 790, 258 N.Y.S.2d 661). A claim under the Federal Civil Rights Act (42 U.S.C. § 1983) is also governed by a three-year Statute of Limitations ( see, 423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474, 486-487, 510 N.Y.S.2d 507, 503 N.E.2d 63, cert. denied 481 U.S. 1008, 107 S.Ct. 1880, 95 L.Ed.2d 488; Fields v. Board of Higher Educ., 94 A.D.2d 202, 463 N.Y.S.2d 785, affd. 63 N.Y.2d 817, 482 N.Y.S.2d 267, 472 N.E.2d 43). We also are of the opinion that a cause of action for prima facie tort should be governed by a three-year Statute of Limitations where, as in the present case, the injury alleged is essentially to the plaintiffs' economic interests, rather than to their reputation (see, McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C214:5, at 431-432; cf., Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572). A negligence cause of action is likewise governed by a three-year Statute of Limitations (CPLR 21 [4] ). The foregoing seven causes of action would therefore be timely, unless CPLR 215(1) requires otherwise.

III

Section 215(1) of the CPLR provides that a Statute of Limitations of one year shall apply to "an action against a sheriff, coroner or constable, upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty". This court has recently held that this provision applies to City Marshals as well as Sheriffs (Kolomensky v. Wiener, supra).

The plaintiffs seek to avoid the effect of our decision in Kolomensky v. Wiener (supra) by arguing that CPLR 215(1) does not apply where, as in the present case, it is alleged that the wrongful acts or omissions committed by a City Marshal in his official capacity were done in bad faith, or with an intention to cause injury to the plaintiffs. In order to avoid the effect of CPLR 215(1) the plaintiffs argue that the jury could find that Crichlow did not commit a bona fide mistake in executing the warrant of eviction but intentionally procured that warrant with an intent to cause injury to the plaintiffs or to benefit himself in some way, so that he is deprived of the protection of the one-year statute. If this argument were valid, then the causes of action based on intentional misconduct would survive; the negligence cause of action, if this argument were correct, would nonetheless be subject to dismissal. However, for the reasons that...