Moran v Port Auth.

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Moran v Port Auth. 2014 NY Slip Op 30617(U) March 10, 2014 Supreme Court, New York County Docket Number: 114576/10 Judge: Donna M. Mills Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. - [* 1] ... SCANNED ON 3/14/2014 ' _;·r14~?01io ..J[J4NCARLOS1vfqRAJY and .ilJJ4N,F'JiA.NtJ/iif}(j . . 'MOMN, ·. :- . ... . , , /< 1 ;\: ::< ::: <' :. ·.p1~~{1tfsi1:.:,;?>:\·~·::: ;':,",'.\:.·~··. CJ . , . i ;;·~\ ..,.;°';~:-:~, ~:''.',,,· ',,.· '<."' ¢ 'f'·::'..,'·· 'r ',,. ?:: , : 1 ; ,;,~~ii~*~~~.:"''' ,))!; ; c .·· ¢· ¢· ·~~{<:· \':;.;1· ¢;~0t16Ii·.s¢4: ~&:. ¢·· Defendants;· ' ,.··-: '· ..1 ¢ '. < 1;.' '' :· : .; ¢·::·: ·:·. ·:· .: .. ¢,: c: ...... ¢ ' Notice of Motion/Order to Show Cause-1\ffidayits-.- EXbibits;... · . d:.· · R~plyingAfftdavits,......________,.__,.__ _~.----.-~~, ¢: .. CROSS-MOTIQN: Upon the foregoing papers, it is o~deted that this motioJ:1 is: DECIDED IN ACCORDANCE WITH ATTAC. fJ~ORANnUM DECISION .. I ¢ ' f ·1 . Dated: ~R '\ br .. l .· ·.· ·. · ¢.·~..·~~G~~ . ¢'(O'?+-~off'd:... -3 .. l.~ .1.~· . Check one: i~'~ \\-,_ .· ...n i ~· · FINAL DISPOSITION C'v-' '\ '· ~--.: ,!::,;:, ·,,, . ·~.· ... ~.· ~c ··. ¢ · · <:: DONNA M. MILLS, JcS.C. NON-FINAL DISPOSITION i1 i ., [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JUAN CARLOS MORAN and JUAN FRANCISCO MORAN, Plaintiffs, - against THE PORT AUTHORITY, et al., INDEX NO. 114576/10 DECISION/ORDER Defendants. DONNA M. MILLS, ~I: In this action, defendants The Port Authority of New York and New Jersey, and P.O. Michael Murray move for an Order, pursuant to CPLR §§ 3211 (a)(2) and 3212, dismissing the instant action upon the grounds that this Court lacks jurisdiction over the subject matter of this action against the Port Authority due to the failure of the plaintiffs, Juan Carlos Moran and Juan Francisco Moran ("Plaintiffs"), to timely serve the summons and complaint in accordance with the mandate of New York Unconscdidated Laws § 7107 (McKinney's 2000). Defendants further move for dismissal of all remaining claims against P.O. Murray on the ground that Plaintiffs' claims are intentional torts and are time-barred pursuant to CPLR § 215(3). The within action arises out of an incident that occurred on August 24, 2009, inside the Port Authority Bus Terminal whereby the Plaintiffs, were arrested, detained and allegedly assaulted by the above named Defendants. On February 5, 2010, all of the criminal charges against the Plaintiffs were dismissed. Plaintiffs thereafter filed a Summons and Complaint on or about November 15, 2010 seeking to recover damages incurred on August 24, 2009 when they were arrested. Plaintiffs' claim alleges claims of false imprisonment, false arrest, assault and battery, failure to intervene to prevent the violation of civil rights, unreasonable search and seizure, negli9ent hiring, training, retention and supervision, intentional infliction of emotional distress cHld punitive damages. [* 3] The question before the Court is whether the action was commenced timely. Defendants contend that Plaintiffs' false imprisonment and false arrest claims accrued on August 25, 2009 the date of their arrest, and as a consequence they needed to file their Summons and Complaint by August 25, 2010. Therefore, Defendants argue, that the Plaintiffs' Summons and Complaint, filed November 5, 2010, was not timely. Plaintiffs however, maintain that their claims accrued on the date of the last alleged underlying act, which was the dismissal of all criminal charges on February 5, 2010,and therefore the filing of the Summons and Complaint was within the one year statute of limitations. The Port /\uthority has waived immunity and consented to be sued only in the event that certain jurisdictional conditions precedent are performed (see, L.1950, ch. 301, §§ 1, 7; Trippe v. Port of N. Y. Auth., 14 N.Y.2d 1 'lSI, ·123-124, 249 N.Y.S.2d 40~1, 198 N.E.2d 585; Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 95-96, 475 N.Y.S.2d 854). In the event that these statutory conditions are not met, the Port Authority's consent to be sued is withheld (Luciano v. Fanberg Realty Co., supra, 192 AD.2d at p. 96, 475 N.Y.S.2d 854). Among these conditions precedent is that the action be - commenced with in one year after the cause of action has accrued (L.1950, ch. 301, § 7). Because this one-year period in which to commence an action against the Port Authority constitutes a condition precedent rather than a mere Statute of Limitations (see, Kahn v. Trans World Airlines, 82 A.D.2d 696, 6S:i9, 443 N.Y.S.2d 79; Dislike v. New York City Tr. Auth., 119 Misc.2d 523, 464 N.Y.S.2d 340; see also, Giannini v. Port Auth., of New York and New Jersey, 127 AD.2d 818, ~5·11 N.Y.S.2d 940; cf. S & J Deli v. New York Prop. Ins. Underwriting Assn., 119 A.D.2d G52, 501 N.Y.S.2d 93), that period cannot be extended by the toll contained in CPLR 203(b)(5) (see, Dislike v. New York City Tr. Auth., supra; see also Seguritan v. Northwest Airlines, 86 AD.2d 658, 659, 446 N.Y.S.L:d 397, affd. 57 N.Y.2d 767, 454 N.Y.S.2d 991, 440 N.E.2d 1339). 2 [* 4] A cause of action for false arrest and false imprisonment accrues at the time the imprisonment terminates, not when the charges are dismissed or withdrawn (Schildhaus v. City of New York, 23 A.D.2d 409, 261 f\l.Y.S.2d 909, affd. 17 N.Y.2d 853, 271 N.Y.S.2d 286, 218 N.E.2d 325). Since plaintiffs were released from imprisonment on August 25, 2009, the commencemenlt of the action on November 5, 2010 was not timely (see Caminita v. City of New York. 25 A.D.2d 848, 269 N.Y.S.2d 826, affd. 19 N.Y.2d 931, 281 N.Y.S.2d 338, 228 N.E.2d 396; Jones v. Town of Johnstown, 41 A.D.2d 866, 342 N.Y.S.2d 927; Molyneaux v. County of Nassau, 22 A.D.2d 954, 256 N.Y.S.2d 123). This Court, therefore, lacks subject matter jurisdiction over the claims 21gainst the Port Authority set forth in the Complaint because Plaintiffs failed to timely commence this action in accordance with the Suability Statute (NY Unconsolidated Laws§ 7101 [McKinney's 2000)). Similarly, because causes of action to recover damages for false arrest and false imprisonment must be commenced within one year of the accrual of the s;ause of action, those causes of action against P.O. Michael Murray are also time-barred (see, CPLR 215[3]). The Court has considered Plaintiffs' other arguments and find them unavailing. Accordingly, it is ORDERED that the defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety with costs and disbursements to defendants as taxed by the Cle1ck upon the submission of an appropriate bill of costs; and it is further 3 [* 5] ORDERED that the Clerk is directed to enter judgment accordingly. So Ordered Dated: Donna M. Mills, J.S.C. 4

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