Kamienska v. Westchester County

• Decision Date: 15 June 1963
• Parties: Ralph KAMIENSKA, Chester Poplees, Floyd Dinan and Roger Marallo, Plaintiffs, v. COUNTY OF WESTCHESTER, Joseph F. Gagliardi, as District Attorney, Frederick E. Weeks, Jr., as Chief Assistant District Attorney, Leonard Rubinfeld, as Assistant District Attorney, John E. Hoy, as Sheriff, Edward J. Ganter, as Commissioner of Finance of the County of Westchester, Defendants.
• Court: New York County Court

Page 814

241 N.Y.S.2d 814

39 Misc.2d 750

Ralph KAMIENSKA, Chester Poplees, Floyd Dinan and Roger

Marallo, Plaintiffs, v. COUNTY OF WESTCHESTER, Joseph F. Gagliardi, as District

Attorney, Frederick E. Weeks, Jr., as Chief Assistant

District Attorney, Leonard Rubinfeld, as Assistant District

Attorney, John E. Hoy, as Sheriff, Edward J. Ganter, as

Commissioner of Finance of the County of Westchester, Defendants.

Westchester County Court.

June 15, 1963.

Cribari, Scapolito & Solinger, Mt. Vernon, for plaintiffs.

Harry Herman, County Atty., and Francis J. Morgan, White Plains, for defendants.

JOHN H. GALLOWAY, Jr., Judge.

One of the plaintiffs, Roger Marallo, moves under Rules 113 and 114, Rules of Civil Practice for an order striking out the answer of the defendants as to his the fourth cause of action set forth in the complaint and directing summary judgment for said plaintiff thereon. The defendants cross-move under Rule 113, Rules of Civil Practice for an order dismissing the complaint (including plaintiff Roger Marallo's cause of action) on the ground that 'it fails to state a cause of action in that there was no timely service of a notice of claim and that the action was not commenced within one year from the date of service of a notice of claim, and awarding summary judgment for the defendants.'

The complaint sets forth four causes of action in conversion (including the moving plaintiff's fourth cause of action). Each asserts that the District Attorney and Sheriff have wrongfully taken and that they and the Commissioner of Finance are wrongfully detaining currency and other personal property belonging to him (in the case of Roger Marallo, the sum of $5,000.00, a red ruby ring and other personal property), for the possession of which each demands judgment.

From the papers submitted on the motion and cross-motion, the following additional facts appear:

On December 8, 1955, the District Attorney, in the course of a gambling raid in the City of Yonkers, seized currency, alleged to be illegal gambling monies, and other personal property, from the persons of the plaintiffs herein, in a gift shop in that City; on March 31, 1958 demand was made upon the District Attorney for the return of the currency and other personal property (by service of a summons and complaint dated March 26, 1958, demanding the return of these monies and other property), to which demand the District Attorney did not respond; the complaint in that action was dismissed by this Court (Hopkins, J.) by order dated June 13, 1958, on the ground that plaintiffs had failed to allege compliance with the condition precedent of service of a notice of claim pursuant to Section 52 of the County Law and Section 50-e of the General Municipal Law; on June 27, 1958 plaintiffs served a Notice of Claim upon the County of Westchester; on November 13, 1958, the summons and complaint in the instant action (dated November 7, 1958) were served on the County of Westchester, for 'illegally withholding' property 'wrongfully taken' from the possession of the plaintiffs; subsequently the moving plaintiff and the three others were indicted for conspiracy to violate the gambling laws (Section 986, Penal Law--Book-making, betting and wagering; and Section 974--keeping a place for policy playing). The moving plaintiff pleaded not guilty and went on trial on February 1, 1960; and on March 25, 1960, on motion made at the close of the evidence, the indictment against him was dismissed.

We consider first the defendants' cross-motion to dismiss the complaint for failure of plaintiffs to timely serve their Notice of Claim and to commence their instant action in compliance with Section 52 of the County Law and Section 50-e of the General Municipal Law. Section 50-e of the latter statute requires that Notice of Claim in a tort action such as this one be served and filed within 90 days from the date when the cause of action accrued, and Section 52(2) of the County Law requires that action be commenced within one year after the filing of the Notice of Claim. Defendants urge that the total maximum time allowed was one year and 90 days from December 8, 1955 (the date when the cause of action accrued), yet plaintiffs did not commence their first action until March 31, 1958; and that therefore the action should be dismissed.

The question is therefore presented as to the date upon which the causes of action arose or accrued. Plaintiff's position is that the present action is based chiefly on the theory that there was an unlawful detention of the property involved after due demand for the return thereof, though the initial taking itself, was also wrongful; that they were not in a position to proceed on a wrongful taking theory since the property at that time was in the custody of the law for use in connection with criminal charges; that on March 31, 1958, by virtue of the service of the summons and complaint in the first action against the District Attorney alone, a demand for return of the chattels was made and upon the refusal of the District Attorney to return same, Notices of Claim against the District Attorney and other officers of Westchester County, including the Commissioner of Finance, were duly and timely served, and that within one year after the demand and refusal, this action was commenced.

Conversion has been defined as an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession (Salmond, Law of Torts, 10th Edition 1945, 286). The foundation for the action of conversion rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results (Fowler v. Hollins, 1872 L.R. 7 Q.B. 616).

One whose taking and possession of property were originally lawful incurs liability for conversion in detaining the property by refusing to surrender possession after demand by one presently entitled to possession (Pierpoint v. Hoyt, 260 N.Y. 26, 182 N.E. 235, 83 A.L.R. 1495). Since an action for conversion is a possessory action, it is clear that to maintain it plaintiff must have such an interest in the property as to entitle him to an immediate right of possession (Pierpoint v. Hoyt supra); at least an interest sufficient to establish that a wrong was perpetrated by defendant against plaintiff in taking the property (Snyder v. Guider, 17 Misc.2d 558, 185 N.Y.S.2d 110). Thus, plaintiff must have a legal right to possession, otherwise he cannot prevail, though the defendant shows no right in himself (Hofferman v. Simmons, 290 N.Y. 449, 49 N.E.2d 523).

Plaintiffs appear to agree that property taken, as here, by peace officers in the enforcement of the Penal Law, and held by them pending prosecution of a criminal charge, is in the custody of the law, and is not subject to replevin until custody is ended by a conviction or acquittal (Simpson v. St. John, 93 N.Y. 363; 13 Carmody-Wait, New York Practice, p. 161, Sec. 26). In such case, after conviction or acquittal of the accused, and provided the property is not contraband, and no longer required by the state as evidence, the owner or person entitled to possession may...