Order affirmed, insofar as appealed from, with costs.

The plaintiff was arrested on or about July 13, 1970, by Detective Cash and Detective Cannon, for allegedly committing attempted robbery, murder, felony murder and possession of a weapon, at a bar in Queens. The detectives escorted the plaintiff to the 103rd Precinct where he was identified by each of four eyewitnesses to the crime. The plaintiff was eventually tried, convicted and sentenced. This court and the Court of Appeals affirmed his conviction without opinion (see, People v. Jackson, 40 A.D.2d 1081, affd 35 N.Y.2d 856).

The plaintiff subsequently brought a petition for a writ of Federal habeas corpus in the United States District Court for the Southern District of New York. That court, in a decision by Judge Broderick, subsequently affirmed by the United States Court of Appeals for the Second Circuit, granted the petition (see, Jackson v. Fogg, 465 F. Supp. 177, affd 589 F.2d 108). In the District Court decision, Judge Broderick found that the pretrial identification procedures employed were unduly suggestive and therefore gave rise "`to a very substantial likelihood of irreparable misidentification'" (Jackson v. Fogg, supra, at p 188, quoting Simmons v. United States, 390 U.S. 377, 384). The Second Circuit affirmed, noting that the findings of the District Court were fully supported by the record, and "the likelihood of misidentification * * * was sufficiently great to make the use of [the eyewitnesses'] trial identifications of [the plaintiff] a denial of due process" (Jackson v. Fogg, supra, at p 111).

The plaintiff was conditionally released on an appearance bond on December 22, 1978. As the State did not retry the plaintiff, Judge Broderick, by order dated April 6, 1979, declared that the convictions were "null and void". The plaintiff thereafter filed a notice of claim on or about July 3, 1979 and instituted this action on October 19, 1979.

In a prior appeal in the instant action, this court granted leave to amend the notice of claim, "setting forth the specific locations of the initial arrest and the institutions in which [he] was incarcerated" (Jackson v. Police Dept., 86 A.D.2d 860). However, this court added in obiter dicta that, "[t]he original notice of claim * * * was timely served" (Jackson v. Police Dept., supra).

We agree with Special Term that the issue of timeliness was not raised in the prior appeal. A cause of action for the tort of false imprisonment accrues as of the date of the prisoner's release from confinement (see, Collins v. McMillan, 102 A.D.2d 860, 861; Boose v. City of Rochester, 71 A.D.2d 59, 65; Caminito v. City of New York, 25 A.D.2d 848, 849, affd 19 N.Y.2d 931; Molyneaux v. County of Nassau, 22 A.D.2d 954, affd 16 N.Y.2d 663). As the plaintiff was released on December 22, 1978, the 90-day period for filing a notice of claim for a cause of action alleging false imprisonment commenced on that day. Therefore, the notice of claim filed on July 3, 1979 was untimely filed (see, Collins v. McMillan, supra; Boose v. City of Rochester, supra). Moreover, we reject the plaintiff's claim that the defendants' failure to raise the timeliness issue, in the prior appeal, estops them from raising the issue herein. The defendants may contest the timeliness issue since service of a legally sufficient notice of claim is deemed an indispensable element of the substantive cause of action (see, Mojica v. New York City Tr. Auth., 117 A.D.2d 722; Saler v. City of New York, 96 A.D.2d 583, 584).

The plaintiff further asserts that the defendants are collaterally estopped from contesting the issue of probable cause with respect to the initial arrest and detention of the plaintiff by Detective Cash and Detective Cannon. Suffice it to say that the issue of probable cause was not decided by the Federal courts (see, Jackson v. Fogg, 465 F. Supp. 177, affd 589 F.2d 108, supra). Therefore, since the issue decided in the prior proceeding was not identical to the issue as to which preclusion is sought in the instant proceeding, collateral estoppel does not apply (see, Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 502-503). Lazer, J.P., Gibbons, Thompson and Niehoff, JJ., concur.