Cunningham v. State

53 N.Y.2d 851 (1981)

Patrick J. Cunningham, Respondent-Appellant, v. State of New York, Appellant-Respondent. (Claim No. 61891.)

Court of Appeals of the State of New York.

Argued March 26, 1981.

Decided May 5, 1981.

Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for appellant-respondent.

Marc S. Krieg for respondent-appellant.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*853MEMORANDUM.

The order of the Appellate Division 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: "3. A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim." 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). 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.