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November 5, 1976.

Ricardo JASTRZEBSKI, Plaintiff,
The CITY OF NEW YORK et al., Defendants.

The opinion of the court was delivered by: MOTLEY


MOTLEY, District Judge.

 This is an action in two counts, the first cause of action purporting to assert common law claims of false arrest, malicious prosecution, and false imprisonment against all the defendants, and the second cause of action purporting to state a federal claim, based upon substantially the same factual allegations, for deprivation of plaintiff's civil rights by defendants Sottile, Aquiluz, Martinez and Rivera. In response, the City and defendant Egan have moved to dismiss the complaint against them (i.e. the first count) pursuant to Rule 12(b)(6), Fed.R.Civ.P., on the ground that the claims contained therein are barred by the applicable New York State statutes of limitations. In the court's view, this argument has some merit and the motion to dismiss is granted in part.


 The essential allegations of the complaint are quite straightforward, as follows: Plaintiff is a citizen of the Republic of Argentina. During the period when the acts in question took place, defendant Egan was a lieutenant in the New York City Police Department. Defendants Sottile, Aquiluz, Martinez and Rivera were assigned to the Special Investigations Unit of the Bureau of Narcotics of the Police Department under the supervision and control of defendant Egan. All acts of the individual defendants were allegedly performed within the scope of their employment as police officers.

 Briefly stated, it is alleged that Sottile, Aquiluz, Rivera and Martinez maliciously, unlawfully, and wrongfully arrested plaintiff on or about November 2, 1970 at about 1:00 A.M. when plaintiff was lawfully on the street. Defendants allegedly had neither a warrant nor probable cause for making such an arrest. It is further alleged that these defendants gained entrance to plaintiff's place of abode by the pretense that they wished to confirm his identity.

 Subsequently, plaintiff was allegedly taken to a police precinct house, where the defendants informed him that he was to be charged, falsely, with possession of a loaded revolver and a quantity of dangerous drugs, both of which had been in the exclusive control of defendants immediately prior to their arrest of plaintiff and had never been in plaintiff's actual or constructive possession. (The pistol had allegedly been illegally obtained and retained by defendant Egan in or about May of 1970, as a part of a conspiracy with the other defendants for its fraudulent and illegal use in connection with Police Department business.)

 Plaintiff was then indicted on those charges, to which he pleaded not guilty, and was held "in bail of $100,000". It is alleged that, at that time, plaintiff had been in this country only a few weeks; that he was without friends or relatives here; and that he was ignorant of the customs, institutions, and language of the United States. Plaintiff's legal counsel advised him that the defendants appeared to have a strong case against him, even though it was allegedly spurious, and that he faced substantial criminal penalties if he were to be convicted. Therefore, his counsel urged him to enter into a plea bargain, whereby he would plead guilty to a charge of possession of an unloaded weapon, in return for dismissal of the drug charge and a sentence of not more than one year on the lessened gun charge.

 Due to his unfamiliarity with the institutions of the United States and due also to the malice displayed by defendants Sottile, Aquiluz, Martinez and Rivera in allegedly "planting" the contraband articles on him, plaintiff allegedly believed that the defendants sought to obtain his conviction on the charges stated in the indictment. Therefore, "plaintiff's mind was dominated by the threats of said defendants, implicit and explicit, and he also believed that he could largely avoid long term imprisonment by following his attorney's advice and pleading guilty to a single reduced charge. Accordingly, acting under such duress, plaintiff was coerced, induced and compelled to plead guilty to a reduced charge of unlawful possession of an unloaded weapon. He was sentenced to one year in jail and was actually incarcerated for ten months." (Complaint, [*] 17). It appears to be undisputed that plaintiff was released from prison in or about September of 1971.

 It is further alleged that defendant Egan, upon being informed of the actions of the other defendant policemen, ratified and approved such actions. Moreover, the City and its agents allegedly acted maliciously and knowingly in bringing false charges, coercing a guilty plea, and procuring plaintiff's conviction and incarceration, with knowledge of his innocence and with the intent to violate his legal and constitutional rights.

 On or about May 15, 1974, defendant Aquiluz allegedly confessed, during testimony in a federal criminal prosecution against defendant Egan in the Eastern District of New York, that the charge of possession of a dangerous weapon had been knowingly false and malicious. Moreover, it is alleged that defendant Sottile similarly confessed on or about June 6, 1974 during a different federal criminal prosecution against defendant Egan in the Southern District of New York.

 On or about August 7, 1974, plaintiff presented his claim in writing to the Comptroller of the City, who refused to adjust it. Approximately a year later, on August 12, 1975, the instant action was filed. Finally, on May 27, 1976, the Supreme Court of the State of New York allegedly issued an order vacating the judgment of conviction previously entered against the plaintiff, and dismissing the indictment on which he had been convicted.


 On the basis of this chronology, it is urged that the complaint be dismissed, first, against defendant Egan on the basis of the four year delay between his discharge from ...

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