Bumbury v. City of New York

Order, Supreme Court, Bronx County (Janice L. Bowman, J), entered April 17, 2007, which denied defendant’s motion to dismiss the complaint and granted plaintiffs cross motion to amend the complaint, modified, on the law, to dismiss that part of the complaint alleging a claim for malicious prosecution, and otherwise affirmed, without costs.

A cause of action for malicious prosecution accrues when the criminal proceeding terminates favorably to the plaintiff (Boose v City of Rochester, 71 AD2d 59, 65 [1979]). Thus, to the extent that plaintiff alleges malicious prosecution by the Bronx County District Attorney, that claim accrued on March 4, 2002, when the sodomy indictment was dismissed, and with regard to any claim of malicious prosecution, plaintiffs notice of claim served March 19, 2004 and this action commenced March 3, 2005 are untimely. In any event, we note that plaintiff cross-moved to amend his complaint to remove any claims of malicious prosecution.

On the other hand, a cause of action for unlawful imprisonment accrues “when the confinement terminates” (Boose v City of Rochester, 71 AD2d at 65). Plaintiffs cause of action alleging unlawful imprisonment thus accrued upon plaintiffs physical release from custody (Nunez v City of New York, 307 AD2d 218, 219 [2003]; Allee v City of New York, 42 AD2d 899 [1973]), which took place on February 26, 2006, not December 18, 2001, when he was apparently transferred to federal custody to be deported. The City’s argument that the federal custody has no bearing on its motion to dismiss lacks merit. The federal detention was rooted in plaintiffs wrongful sodomy conviction, after the City provided federal authorities with the record of plaintiffs conviction, but later failed to remove it from his criminal history, even though the conviction was vacated and the indictment ultimately dismissed.

Given the absence of prejudice to defendant, the court did not improvidently exercise its discretion by, in effect, granting plaintiff leave to amend the complaint to clarify his claims (see Zornberg v North Shore Univ. Hosp., 29 AD3d 986 [2006]; Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co. of Pittsburgh, Pa., 298 AD2d 180 [2002]).

Upon review of the Monell claim (Monell v New York City Dept. of Social Servs., 436 US 658 [1978]) raised in the original complaint, we find that plaintiff has given the City fair notice of a custom or policy that would establish municipal liability under 42 USC § 1983 by alleging gross negligence in failing properly to train, supervise and discipline its employees, resulting in injury. Such failure, it is alleged, amounted to “deliberate indifference” to the rights of individuals coming in contact with those employees (Canton v Harris, 489 US 378, 388 [1989]; see also Pendleton v City of New York, 44 AD3d 733 [2007]; Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278, 289-290 [2003]; and see generally Ramos v City of New York, 285 AD2d 284, 303-306 [2001]). Concur—Mazzarelli, J.P., Andrias and Freedman, JJ.