Summary
holding that "acceptance of an ACD precludes a claim for malicious prosecution"
Summary of this case from Wheeler v. BuckleyOpinion
2014-04-1
Milton EKE, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant, The Triborough Bridge and Tunnel Authority, Defendant–Appellant.
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellant. Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellant. Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, RICHTER, JJ.
Judgment, Supreme Court, New York County (William E. McCarthy, J.), entered October 2, 2012, after a jury trial, in favor of plaintiff and against defendant The Triborough Bridge and Tunnel Authority (TBTA) in the amount of $25,000, bringing up for review an order, same court and Justice, entered on or about July 10, 2012, which denied TBTA's motion for a directed verdict, and an order, same court (Donna M. Mills, J.), entered on or about July 17, 2008, which denied TBTA's motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court properly denied TBTA's motion to dismiss the complaint. The record supports the court's determination that TBTA waived the statute of limitations defense by failing to assert it in its answer ( seeCPLR 3211[e] ).
TBTA's motion for a directed verdict was also properly denied. While a plaintiff's acceptance of an ACD precludes a claim for malicious prosecution, it “does not interdict an action for false imprisonment” ( Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 423, 461 N.Y.S.2d 765, 448 N.E.2d 432 [1983];see Scherr v. City of Lackawanna, 79 A.D.3d 1785, 913 N.Y.S.2d 602 [4th Dept.2010] ). To the extent that our decisions in Molina v. City of New York, 28 A.D.3d 372, 814 N.Y.S.2d 120 (1st Dept.2006) and Hock v. Kline, 304 A.D.2d 477, 758 N.Y.S.2d 640 (1st Dept.2003) hold that acceptance of an ACD prevents the latter claim, they are no longer to be followed.