| Brownell v LeClaire |
| 2012 NY Slip Op 05231 [96 AD3d 1336] |
| June 28, 2012 |
| Appellate Division, Third Department |
| Ian Brownell, Respondent, v Roger LeClaire, as Sheriff ofWashington County, et al., Appellants. |
—[*1] Corrigan, McCoy & Bush, P.L.L.C., Rensselaer (Scott W. Bush of counsel), for Kelly S.McKeighan, appellant. Robert R. Race, New York City, for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered March 29,2011 in Washington County, which denied defendants' motions for summary judgmentdismissing the complaint.
In September 2001, the residence of plaintiff's employer, which was located in the Town ofJackson, Washington County, was burglarized and more than $20,000 was stolen. During theinvestigation that followed, fingerprints bearing a marked similarity to plaintiff's were recoveredat the crime scene. Later, upon being questioned by police, plaintiff allegedly gave a statementadmitting that he had entered the premises with another individual without permission and, whileinside, damaged some personal property. Plaintiff was arrested and subsequently charged byindictment with burglary in the second degree and criminal mischief in the fourthdegree.[FN1][*2]Defendant Kelly S. McKeighan represented plaintiff on thecriminal charges and ultimately negotiated a plea agreement where, in return for a guilty plea toattempted burglary in the second degree, plaintiff would be adjudicated a youthful offender andsentenced to time served, plus five years of probation, and would be required to makerestitution.[FN2]Prior to plaintiff being sentenced in March 2002, McKeighan informed him that he had accepteda position at the District Attorney's office of Washington County and could no longer representplaintiff. As a result, new counsel represented plaintiff at sentencing, and plaintiff was sentencedin accord with the plea agreement.
In December 2006, plaintiff's conviction was vacated after anotherindividual—Kenneth Happ—told police that he had committed the burglary andstole a large sum of currency from the victims' residence. The day that plaintiff's conviction wasvacated, he filed a notice of claim against defendant Sheriff's Department of Washington Countyand defendant Washington County. Thereafter, in June 2007, plaintiff commenced this actionagainst the Sheriff's Department, the County and defendant Sheriff of Washington County(hereinafter collectively referred to as the County defendants) claiming negligence, false arrest,false imprisonment and malicious prosecution. Plaintiff also brought a claim against McKeighan,alleging that he had negligently represented plaintiff in connection with the criminal action. TheCounty defendants and McKeighan each separately moved for summary judgment dismissing thecomplaint. Supreme Court denied both motions, prompting this appeal.
The claims against the County defendants should have been dismissed. Personal injuryclaims against a municipal defendant must be commenced within a year and 90 days from whenthey accrued (see General Municipal Law § 50-i [1]), and a notice of claim must befiled within 90 days of that date (see General Municipal Law § 50-e). Plaintiff'sclaims of false arrest and unlawful imprisonment accrued on the date he was released from prisonin 2002 (see Hendrickson-Brown v Cityof White Plains, 92 AD3d 638, 639 [2012]; Matter of Blanco v City of New York, 78 AD3d 1048, 1048[2010]; Jackson v Buffardi, 66AD3d 1297, 1298 [2009], lv denied 14 NY3d 710 [2010]). Given that plaintiff didnot file a notice of claim until December 2006, and did not commence his action against theCounty defendants until June 2007, long after the relevant statutory time limits had expired, hisclaims for false arrest and unlawful imprisonment must be dismissed.[FN3]
However, plaintiff's claim for malicious prosecution did not accrue until the judgment ofconviction was vacated in December 2006 (see Bumbury v City of New York, 62 AD3d 621, [*3]621 [2009]; Nunez v City of New York, 307 AD2d 218,220 [2003]; Farber v County of Hamilton, 158 AD2d 902, 903 [1990]) and, as a result,the notice of claim was timely filed and the underlying action was commenced within thestatutory time limits. As for the merits of plaintiff's claim based on malicious prosecution, toprevail, he must establish " 'that a criminal proceeding was commenced; that it was terminated infavor of the accused; that it lacked probable cause; and that the proceeding was brought out ofactual malice' " (Guntlow v Barbera,76 AD3d 760, 765 [2010], lv dismissed 15 NY3d 906 [2010], quoting Cantalinov Danner, 96 NY2d 391, 394 [2001]; see Barrett v Watkins, 82 AD3d 1569, 1570-1571 [2011]). Here,plaintiff was arrested because he is alleged to have provided police with oral and writtenstatements admitting that he had entered the victims' residence without permission and, whileinside, had damaged some of their personal property. These alleged admissions werecorroborated by fingerprints that the police recovered at the crime scene which appear to beplaintiff's. This evidence established as a matter of law that probable cause existed for plaintiff'sarrest and the decision to prosecute him for this burglary was rationally based (see Lawson v City of New York, 83AD3d 609, 609 [2011]). Moreover, there is no evidence in the record indicating that theCounty defendants were reckless or grossly negligent in the conduct of this investigation or in thecontact they had with plaintiff during this inquiry. In sum, plaintiff's claim that the Countydefendants acted with actual malice when they decided to prosecute him is completely withoutmerit and totally unsupported in the record (see Harris v State of New York, 302 AD2d716, 717 [2003]; Hernandez v State of New York, 228 AD2d 902, 904 [1996]).
As for his claim against McKeighan, plaintiff argues that McKeighan was negligent when herepresented him and advised him to plead guilty to a crime he did not commit. In that regard,plaintiff sought damages for personal and psychological injuries, as well as other nonpecuniarylosses he claims to have incurred as a result of his incarceration and wrongful conviction. Adefendant in a criminal prosecution cannot recover for nonpecuniary damages that occur as aresult of legal malpractice and, therefore, these claims made by plaintiff against McKeighan mustbe dismissed (see Dombrowski v Bulson, 19 NY3d 347 [2012]). However, McKeighan'smotion papers fail to address plaintiff's claim that he sustained economic damages as a result ofMcKeighan's alleged legal malpractice. As a result, while we have serious reservations about thevalidity of these claims, we are, at this stage of the proceedings, constrained to find that aquestion of fact exists as to whether plaintiff incurred such economic damages as a result ofMcKeighan's alleged legal malpractice.
Lahtinen, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as (1) denied the motion ofdefendants Sheriff's Department of Washington County, Washington County and Sheriff ofWashington County and (2) denied defendant Kelly S. McKeighan's motion for summaryjudgment with respect to plaintiff's claim for nonpecuniary damages; McKeighan's motionpartially granted to said extent and motion of said Washington County defendants granted andcomplaint dismissed against them; and, as so modified, affirmed.
Footnote 1: The indictment charged thatplaintiff "knowingly enter[ed] or remaine[ed] unlawfully in the dwelling of [the victims] with theintent to commit a crime therein" and that he had "intentionally damage[d] a file cabinetbelonging to [the victims]." It did not specifically allege that he had committed a larceny whileon the premises.
Footnote 2: During the plea allocution,plaintiff did not admit to stealing any property while inside the victims' residence. Rather, headmitted to having gone into their home without permission and, while inside, damaged a filecabinet.
Footnote 3: His claims are untimely evenafter they are tolled until he was no longer an infant and turned 18 (see CPLR 208; Campbell v City of New York, 4 NY3d200, 203-204 [2005]).