Newell v LaGattuta

[*1] Newell v LaGattuta 2005 NY Slip Op 51660(U) [9 Misc 3d 1119(A)] Decided on August 9, 2005 Supreme Court, Kings County Harkavy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2005
Supreme Court, Kings County

Robert Newell, Plaintiff,

against

Dora LaGattuta, as administratrix of the Estate of John LaGattuta, and Dora LaGattuta, Individually, et ano., Defendants.



3008/05

Ira B. Harkavy, J.

Upon the foregoing papers, defendants move for an order pursuant to CPLR 3211 (a) (5), dismissing the above-captioned action, on the ground that the applicable statute of limitations has expired. Plaintiff Robert Newell cross-moves for an order (1) pursuant to CPLR 3025 (c), permitting plaintiff to amend the complaint to conform it to the evidence, and (2) pursuant to CPLR 3211 (d), denying the motion and allowing defendants to assert the statute of limitations as an affirmative defense, or granting a continuance in order to permit plaintiff to obtain additional materials from defendant so as to properly defend this motion.

Background

On November 8, 1998, plaintiff, a New York City police officer, and his partner, while in a police vehicle, stopped a car being driven by John LaGattuta (LaGattuta), on suspicion that he possessed drugs. In an apparent attempt to evade arrest, LaGattuta drove his car into plaintiff's [*2]vehicle, as a result of which plaintiff now claims personal injury.

Following his arrest, LaGattuta was indicted on a number of counts including assault in the second degree under Penal Law § 120.05 (3).[FN1] On February 21, 2001, he pled guilty in Supreme Court, Kings County, to attempted assault in the second degree (Penal Law §§ 110 and 120.05 [3]), and was sentenced to a term of 1½ to 3 years. He died on January 2, 2003.

Plaintiff commenced the instant personal injury lawsuit against LaGattuta's personal representatives by filing a summons and verified complaint on February 1, 2005. With relevance to the instant motion, plaintiff alleges therein that his injuries resulted from having been assaulted by LaGattuta, and that the action was commenced to recover damages from a party convicted of a crime which is the subject of this action within seven years of the date of such crime.

Contentions

CPLR 213-b provides that a crime victim may commence an action to recover damages from a defendant who is "convicted of a crime which is the subject of such action for any injury or loss resulting therefrom within seven years of the date of the crime" (emphasis provided). Defendants argue that plaintiff's complaint is defective because LaGattuta was not convicted of assault, but rather of attempted assault in the second degree. Defendants further contend that because attempted assault in the second degree is not a cognizable crime, the seven-year statute of limitations is inapplicable, and plaintiff's action, which alleges assault as the subject crime, is governed by the one-year statute of limitations under CPLR 215 and is time-barred.

In opposition to the motion and in support of his own cross motion, plaintiff argues that the conviction was never overturned, thus barring defendants from claiming that the crime of attempted assault in the second degree is not a cognizable crime under the principle of collateral estoppel. Plaintiff further contends that he was injured as a result of the crime for which defendants' decedent was convicted. In the event the court determines that the complaint must allege a violation of Penal Law §§ 110 and 120.05 (3), plaintiff seeks leave to amend his complaint accordingly.

In reply, defendants reiterate their contention that plaintiff has failed to demonstrate that the crime alleged is the subject of plaintiff's action, and assert that plaintiff's cross motion for leave to amend his complaint should be denied because he is attempting, without evidentiary basis, to amend pleadings simply to meet those arguments raised in defendants' motion.

Discussion

"A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time within which to sue has expired" (Gravel v Cicola, 297 AD2d 620 [2002]). Defendants have met their burden.

In order to avail himself of CPLR 213-b's seven year statute of limitations, plaintiff must show that: (1) he is a crime victim; (2) the defendant has been convicted of a crime; (3) the defendant's crime is the subject of the plaintiff's civil action; and (4) the plaintiff's injury resulted [*3]from that crime (see Boice v Burnett, 245 AD2d 980, 981 [1997]). A review of the transcript of the minutes taken at the time decedent pled guilty reveals that on February 21, 2001, the decedent, through his attorney, withdrew his plea of not guilty to the crime of assault in the second degree under section 120.05 (3) of the Penal Law and, after entering a plea of guilty to attempted assault in the second degree, (Penal Law §§ 110 and 120.05[3]) allocuted, to the satisfaction of the court, which then accepted his plea. Clearly, defendants' decedent was not convicted of assault in the second degree, but, rather, of attempted assault in the second degree.

Contrary to defendants' contention, attempted assault in the second degree is, in fact, a cognizable crime in the present context. Although the Court of Appeals, in People v Campbell (72 NY2d 602 [1988]), held that attempted assault in the second degree under Penal Law § 120.05 (3) was a legal impossibility because "the section imposes criminal responsibility for an unintended injury and one cannot be convicted of the crime of attempting to bring about an unintended result" (id. at 604), the conviction in that case did not result from the defendant's guilty plea. Rather, the defendant, following a non-jury trial where he was acquitted of the indicted crime of assault in the second degree, was convicted of two counts of attempted assault in the second degree under Penal Law § 120.05 (3), which the court considered over the defendant's objection. By contrast, the decedent in the case at bar entered into a negotiated guilty plea to the crime of attempted assault in the second degree, thus resulting in a conviction for that crime. Since "a defendant may plead guilty to a non-existent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed" (see People v Daniels, 237 AD2d 298 [1997]), an unappealed conviction for attempted assault in the second degree, despite its theoretical impossibility of commission, can serve as a legal predicate for other purposes, such as determining an individual's status as a second or persistent felony offender (see People v King, 175 AD2d 411 [1991]; People v Early, 173 AD2d 884 [1991]). Accordingly, the court rejects defendants' argument that the decedent's "nonexistent crime" of attempted assault in the second degree cannot serve as a subject crime under CPLR 213-b.

However, the court cannot agree that plaintiff's complaint is properly drafted. Plaintiff cites no authority to support his contention that the decedent's conviction of attempted assault in the second degree can be considered as the "subject crime" for the purposes of CPLR 213-b and indeed none appears to exist. Since the language of CPLR 213-b, which requires that a subject crime be alleged, is clear and unambiguous and must be given its plain meaning (see Raritan Development Corp. v Silva, 91 NY2d 98, 106-107 [1997]; Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208 [1976]), plaintiff's contention that the decedent was convicted of the subject crime which he set forth in the complaint is unavailing. Thus, as correctly contended by defendants, plaintiff's cause of action, as presently set forth, is barred by the one-year statute of limitations under CPLR 215.

Nevertheless, in considering that branch of plaintiff's cross motion seeking leave to amend his verified complaint to conform to the evidence, the court notes that defendants fail to demonstrate, as required, that they will suffer substantial prejudice (see Siegel, Practice Commentaries, McKinney's Cons Laws of N Y, Book 7B, CPLR C:3025.15; see also Budoff v Kessler, 284 App Div 1049 [1954] [where the plaintiff, whose cause of action for dental malpractice was dismissed based upon the expiration of the statute of limitations, was permitted, on appeal, to amend his complaint to plead a cause of action for breach of contract]). [*4]Accordingly, the court denies defendants' motion and grants plaintiff's cross motion to the extent of permitting him to serve, within 30 days of entry of this order, an amended verified complaint in the form annexed to his cross motion. Upon such service, defendants shall be permitted to amend their answer to allege the statute of limitations as an affirmative defense.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Section 120.05 (3) of New York's Penal Law provides that "[a] person is guilty of assault in the second degree when . . .[w]ith intent to prevent a . . . police officer . . . from performing a lawful duty . . . he causes physical injury to such . . . police officer . . . ."