Ahmed v Ahmed

[*1] Ahmed v Ahmed 2008 NY Slip Op 52501(U) [21 Misc 3d 1145(A)] Decided on December 11, 2008 Supreme Court, Bronx County Hunter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2008
Supreme Court, Bronx County

Aisha Ahmed, Plaintiff,

against

Khurshid Ahmed, Defendant.



303987/08



Counsel for Plaintiff: Michael Drezin, Esq.

Counsel for Defendant: Robert C. Buff, Esq. of Agovino & Asselta, LLP

Alexander W. Hunter, J.

The motion by defendant for an order pursuant to C.P.L.R. §§3211(a)(1) and (5), dismissing plaintiff's cause of action, is granted.

The cause of action as alleged in plaintiff's complaint is for false arrest. The complaint alleges that plaintiff was arrested on August 27, 2005 after defendant told the police that she was an employee who stole money from his pharmacy, A & A Pharmacy.

Defendant moves to dismiss plaintiff's complaint and annexes a copy of the Certificate of Disposition issued by Supreme Court, Bronx County, dated June 27, 2008. (Defendant's Exhibit B). The complaint filed in Bronx Supreme Court, Criminal Division, states that "based on an official investigation" plaintiff electronically withdrew over thirty thousand dollars ($30,000) from A & A's Pharmacy account at Citibank and transferred same to various bank accounts in her name. Plaintiff was charged with grand larceny in the third degree and criminal possession of stolen property in the third degree, both of which are felonies. Plaintiff alleges in her complaint that she was "jailed" for approximately thirty (30) hours after her arrest.

Defendant refers to the Certificate of Disposition which indicates that plaintiff ultimately plead guilty to disorderly conduct. Pursuant to plaintiff's complaint, plaintiff "restored the status quo so that ownership of the subject funds could be adjudicated in the appropriate forum." (Plaintiff's Complaint, para. 23). Defendant asserts that plaintiff made restitution. Defendant argues that the applicable statute of limitations for false imprisonment, which is commonly referred to as false arrest, pursuant to C.P.L.R. §215(3), is one year. Defendant asserts that the statute of limitations for such a civil action begins to run when the plaintiff is released from [*2]custody. Therefore, since plaintiff was released from custody approximately thirty (30) hours after her arrest, or August 29, 2005 and the cause of action herein was filed on May 15, 2008, plaintiff's action is time barred and must be dismissed.

Plaintiff opposes the motion and urges this court to find that C.P.L.R. §215(8), is unconstitutional under the Fourteenth Amendment of the U.S. Constitution and under Article 1 section 11 of the New York State Constitution because it excludes persons who became victims of crime when they were arrested under false pretenses.

Plaintiff asserts that C.P.L.R. §215(8), which tolls the statute of limitations with respect to civil actions against defendants who have been prosecuted for crimes, is intended to protect victims of crime and that plaintiff herein is a crime victim "who presents her innocence to this court as a matter of law." (Drezin Aff., para. 19). Plaintiff's counsel further contends that plaintiff is a crime victim "who presents this court with a meritorious tort claim, as a matter of law, arising from the criminal conduct of another. That she does so outside the box of a conventional CPLR 215(8) fact pattern should be of no import to this court." (Drezin Aff., para. 19). Plaintiff's counsel further goes on to argue that C.P.L.R. §215(8) assumes that the victim of crime is always the accuser and never the accused and that strictly construing that statute would give the defendant herein the advantage of having had the plaintiff arrested under false pretense and he would have gotten away with it.

Plaintiff argues that defendant caused a police report to be issued which contained material omissions of fact. Plaintiff contends that defendant's reference to the plaintiff in the criminal complaint as a mere employee was a misstatement in that he married the plaintiff in a religious ceremony. In plaintiff's affidavit offered in opposition to the motion, plaintiff maintains that as a result of her efforts, defendant's pharmacy business grew and became profitable, causing the couple to amass a multi-million dollar fortune that included various properties and a gas station. Therefore, plaintiff contends that as a result of "a statute not drafted in conformity with constitutional law," defendant will escape civil liability and this court should declare C.P.L.R. §215(8) unconstitutional and deny defendant's motion to dismiss plaintiff's complaint.

In reply, defendant maintains that under New York law, a false arrest claim is subject to a one year statute of limitations that runs form the date the plaintiff is released from custody. Defendant argues that for C.P.L.R. §215(8) to apply, both the criminal and civil proceedings must be against the same defendant. Since the tolling provisions of that statute are inapplicable to the statute of limitations issue presented herein, plaintiff's argument with respect to whether or not the statute is constitutional, is completely irrelevant. Moreover, defendant argues that plaintiff failed to articulate a cogent argument as to why C.P.L.R. §215(8) is unconstitutional.

C.P.L.R. §215(3) provides that the statute of limitations for false imprisonment is one year. Case law has established that the one year statute of limitations runs from the date when the party suing for false imprisonment is released from custody or confinement. Roche v. Village of Tarrytown, 309 AD2d 842 (2nd Dept. 2003). It is undisputed that plaintiff was [*3]arrested on August 27, 2005 and released from custody/confinement, approximately thirty (30) hours later or on or about August 29, 2005. The cause of action for false imprisonment herein was not filed until May 15, 2008, which is well past the one year statute of limitations.

C.P.L.R. §215(8)(a) states, "Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining." C.P.L.R. §215(8)(b) involves tolling with respect to cases involving sex offenses.

In the case at bar, it is the plaintiff who was the defendant in the criminal action and the tolling provision only applies where the defendant in the criminal matter is also the defendant in the civil matter. Although plaintiff would have this court declare C.P.L.R. §215(8), unconstitutional since it does not make exceptions for individuals who were arrested under false pretenses. This court declines to do so.

Accordingly, defendant's motion to dismiss plaintiff's complaint as time barred since it was not commenced prior to the one year statute of limitations as set forth in C.P.L.R. §215(3), is granted.

Defendant is directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated: December 11, 2008

J.S.C.