| Gold v Rockville Ctr. Police Dept. |
| 2010 NY Slip Op 01760 [71 AD3d 632] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Allen S. Gold, Respondent, v Rockville Centre PoliceDepartment et al., Defendants and County of Suffolk et al.,Appellants. |
—[*1] Allen S. Gold, Copiague, N.Y., respondent pro se.
In an action, inter alia, to recover damages for defamation, trespass, and false arrest, thedefendants County of Suffolk, Suffolk County Police Department, Suffolk County DetectiveRobert M. Petro, Jr., as a Detective of the Suffolk County Police Department, Robert M. Petro,Jr., as a Notary Public of the State of New York, Suffolk County Detective Kevin Early, andSuffolk County Detective Donald Hughes appeal from so much of an order of the SupremeCourt, Nassau County (Murphy, J.), dated May 12, 2009, as denied their motion to dismiss thecomplaint insofar as asserted against them on the ground that the plaintiff failed to comply withGeneral Municipal Law § 50-h.
Ordered that the order is modified, on the law, by adding thereto a provision directing acontinuation of a hearing pursuant to General Municipal Law § 50-h; as so modified, theorder is affirmed insofar as appealed from, with costs to the plaintiff.
On January 16, 2007, the plaintiff was arrested at his home in Rockville Centre. In June2007 he was indicted for insurance fraud and falsely reporting an incident. The charges stemmedfrom an alleged occurrence on September 29, 2006, when the plaintiff reported that his yacht hadsunk in the Atlantic Ocean off Fire Island.
In early April 2007, after being arrested but prior to being indicted, the plaintiff served anotice of claim upon the County of Suffolk, naming, among others, the County, the SuffolkCounty Police Department, and Detective Robert M. Petro, Jr. Shortly thereafter, the SuffolkCounty Attorney served the plaintiff with a demand for an examination pursuant to GeneralMunicipal Law § 50-h (hereinafter the 50-h hearing). The 50-h hearing was originallyscheduled for May 30, 2007, but adjourned at the plaintiff's request to January 30, 2008. On thatdate, the plaintiff appeared, was duly sworn, placed his name and address on the record, andthereafter invoked his Fifth Amendment privilege against self-incrimination. The plaintiff stated,in response to a direct question from the attorney for the County defendants, that he wouldsubmit to an examination after the conclusion of the criminal case.[*2]
On April 3, 2008, within the one-year and 90-day statuteof limitations period (see General Municipal Law § 50-i [1] [c]), the plaintiffcommenced this action against, among others, the County of Suffolk, the Suffolk County PoliceDepartment, and Suffolk County Detectives Robert M. Petro, Jr., Kevin Early, and DonaldHughes (hereinafter collectively the County defendants). In July 2008 the County defendantsmoved to dismiss the complaint insofar as asserted against them on the ground that the plaintifffailed to comply with General Municipal Law § 50-h by invoking the Fifth Amendmentprivilege against self-incrimination. On March 31, 2009, the plaintiff was acquitted of theaforementioned criminal charges. By written correspondence dated April 1, 2009, while theCounty defendants' motion was still pending and undecided, the plaintiff informed the SupremeCourt and counsel of the disposition of the criminal case against him and requested that the 50-hhearing be rescheduled. In an order dated May 12, 2009, the Supreme Court, inter alia, deniedthe County defendants' motion. We modify.
At the 50-h hearing on January 30, 2008, while the criminal charges against the plaintiffwere pending, the plaintiff invoked his Fifth Amendment privilege against self-incrimination (see Kemp v County of Suffolk, 61AD3d 937, 938 [2009]; Nasca vTown of Brookhaven, 10 AD3d 415 [2004]). After he was acquitted, the plaintiffpromptly informed the County defendants of the disposition of the criminal case against him, andrequested that the 50-h hearing be rescheduled (cf. Kemp v County of Suffolk, 61 AD3dat 938). Under the circumstances presented, the Supreme Court properly denied the Countydefendants' motion to dismiss the complaint insofar as asserted against them. However, it shouldalso have directed a continuation of the 50-h hearing which had begun on January 30, 2008(see Nasca v Town of Brookhaven, 10 AD3d at 415).
The County defendants' remaining contentions are without merit. Dillon, J.P., Florio,Leventhal and Roman, JJ., concur.