Tranberg v. Nassau County
| Decision Date | 05 January 1961 |
| Citation | 28 Misc.2d 275,209 N.Y.S.2d 995 |
| Parties | Phillip A. TRANBERG, Plaintiff, v. COUNTY OF NASSAU, Defendant. |
| Court | New York Supreme Court |
Edward B. Joachim, New York City, for plaintiff.
J. Oakey McKnight, County Atty. of Nassau County, Mineola, Theodore Velsor, Mineola, of counsel, for defendant.
Defendant moves under rule 106 of the Rules of Civil Practice to dismiss fifteen causes of action on the ground that they fail to state causes of action, or in the alternative as to the first cause of action, that pursuant to rule 90 of the Rules of Civil Practice that plaintiff separately state and number the various causes of action therein pleaded. Defendant contends that fourteen of the causes of action are barred because the notice of claim was not filed within the 90 day period required by section 50-e of the General Municipal Law. That section requires a notice of claim to be filed within ninety days after the claim arises.
The action arises out of the arrest, imprisonment, indictment and trial of plaintiff for the murder of Edward A. Reitmann. Plaintiff was arrested on September 30, 1957. He was thereafter indicted on October 7, 1957 and after a trial was found not guilty on April 25, 1958. Plaintiff served a notice of claim on the Board of Supervisors on May 4, 1958 and upon the County Attorney on May 12, 1958.
The causes of action challenged by the defendant are: the 'First,' for false arrest and imprisonment from September 30, 1957 to April 25, 1958; the 'Second,' for malicious prosecution; the 'Third,' for deprivation of plaintiff's constitutional rights by defendant's use of eavesdropping equipment while plaintiff was conferring with his counsel at the county jail on the 2nd and 3rd of October, 1957, by defendant's pressuring of prospective witnesses, and by lengthy and onerous interrogation on September 30, 1957; the 'Fourth,' for illegal search and seizure in plaintiff's home on September 30, 1957; the 'Fifth,' through 'Ninth,' for libel; and 'Eleventh' through 'Fifteenth,' for slander on the 1, 2, 9, 14 and 25 of October, 1957.
All of the above causes of action except the 'First' and 'Second,' clearly arose more than ninety days prior to the date of filing of the notice of claim. Those causes of action, if any, arose in September and October, 1957, and the notice of claim was not filed until May, 1958.
The 'Sixteenth' cause of action is attacked because it is a repetition and a duplication of the 'Tenth' cause of action which pleads a cause of action for libel on April 18, 1958. However, the 'Sixteenth' cause of action is for slander per se on April 18, 1958 and is sufficient. It will not be stricken down because of the failure to allege that the statement was false as the law presumes that a defamation is false, and the defendant has the burden of pleading and proving its truth (Bingham v. Gaynor, 203 N.Y. 27, 34, 96 N.E. 84, 86).
As to the 'First' cause of action for false arrest and imprisonment, the action arose upon plaintiff's discharge in April, 1958, and the notice of claim filed in May, 1958 was filed within the 90 day period required by section 50-e of the General Municipal Law. The period begins upon cessation of imprisonment, detention or restraint upon the person's physical liberty. Dusenbury v. Keiley, 85 N.Y. 383, 386; Tierney v. State, 266 App.Div. 434, 437, 42 N.Y.S.2d 877, 879, affirmed 292 N.Y. 523, 54 N.E.2d 207; Salerno v. Lansing, 4th Dept., 269 App.Div. 810, 55 N.Y.S.2d 482; Fischer v. Seamen's Church Institute of New York, 195 Misc. 471, 92 N.Y.S.2d 379, modified on other grounds 275 App.Div. 1047, 92 N.Y.S.2d 427; Goolden v. Village of Massena, 197 Misc. 647, 99 N.Y.S.2d 927; La Curto v. Brooklyn National League Baseball Club, 6 Misc.2d 637, 160 N.Y.S.2d 499; Mierop v. State, 22 Misc.2d 216, 223, 201 N.Y.S.2d 2, 9.
Dill v. County of Westchester, 2 Dept., 4 A.D.2d 779, 165 N.Y.S.2d 623, 624, is not to the contrary. There the notice of claim was served 91 days after cessation of imprisonment. The court also said that 'a cause of action for false imprisonment accrues the instant the imprisonment takes place and becomes complete the moment the detention ceases * * *' (emphasis added), and cited the Dusenbury, Tierney and Salerno cases.
In support of its position the defendant County states in its brief that the plaintiff was indicted by the grand jury. However, on this motion under rule 106, R.C.P., the defendant authorizes the court to accept as true the relevant...
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...time he was on bail (La Curto v. Brooklyn National League Baseball Club, Inc., 6 Misc.2d 637, 160 N.Y.S.2d 499; Tranberg v. Nassau County, 28 Misc.2d 275, 209 N.Y.S.2d 995; Zimmerman v. City of New York, 40 Misc.2d 179, 242 N.Y.S.2d 791). It would therefore appear that in view of the fact t......
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