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TINKER v. ABRAMS

August 1, 1986

DOROTHY E. TINKER, Plaintiff,
v.
A. JACOB ABRAMS, Defendant



The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.:

BACKGROUND

Plaintiff brought this action to recover damages for intentional infliction of emotional distress and custodial interference stemming from defendant's alleged abduction of plaintiff's three minor children. See Complaint at 2-5. Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56. At issue is whether plaintiff's action is time-barred by the applicable statute of limitations.

 The essential facts in this case are not in dispute. Plaintiff Dorothy Tinker and defendant A. Jacob Abrams were divorced in October of 1973. The divorce decree awarded the plaintiff physical custody of their three infant daughters under a joint custody arrangement. On June 28, 1974, the defendant took the children for what was to have been a one-month prearranged visitation. See Defendant's Statement Pursuant to Local Rule 3(g)("Def. 3(g) Stmt.") at P4. *fn1"

 Plaintiff alleges and defendant does not deny that he failed to return the children at the designated time and instead took them to live with him in San Diego, California without informing the plaintiff of their whereabouts. Plaintiff stated at her deposition that after the alleged abduction but prior to 1976, she contacted the Family Court, the District Attorney, the Bar Association and Children's Rights Inc., in attempts to regain custody of her children. See Plaintiff's Affidavit in Opposition ("Pl. Aff.") at 1-2; see Exhibit E to Defendant's Motion to Dismiss at 29-30 ("Def. Ex. E") (Plaintiff's Deposition).

 It is clear and undisputed that, at least as early as June of 1976, plaintiff knew of her children's exact location -- including their address and telephone number in Rancho Santa Fe, San Diego, California. See Def. 3(g) Stmt. at P5. Moreover, plaintiff stated at her deposition that she knew in 1970 that defendant was involved in a tuna fishing business in San Diego. See Def. Ex. E at 9-10. In 1976, plaintiff hired Jim Schwartz, a private detective, who informed plaintiff that her husband still had the tuna fleet operation. See id. at 15. Plaintiff bought Mr. Schwartz a plane ticket to California after Schwartz told plaintiff that he believed her husband was living in California with the children. However, Mr. Schwartz was never heard from again by plaintiff. See id. at 54. In May or June of 1976, the plaintiff hired Eddie Sanchez, another private investigator. See id. at 60. Plaintiff admits that at this time Mr. Sanchez told her that he had located the defendant and the children at Rancho Santa Fe and that Mr. Sanchez gave her defendant's phone number. See id. at 67-68.

 When plaintiff called the defendant's phone number in June of 1976, her daughter Patricia answered the phone. See id. at 69. Plaintiff called that phone number more than once within the next year. See id. at 72; Def. 3(g) Stmt. at P6. Thereafter, plaintiff deliberately did not contact the children until December of 1983. See Def. Ex. E at 82; Def. 3(g) Stmt. at P7. Although the defendant and the children changed residences in California approximately once per year, their phone number continued to be the same as the number plaintiff had called throughout 1976. See Def. Ex. F at 41-42. (Patricia Tinker Dep.).

 Plaintiff contacted Patrick Wall, Esq. in 1976, but did not retain him as counsel. Thereafter, plaintiff took no action until 1979 when she consulted Edward Morrison, Esq. See Def. Ex. E at 88. Morrison apparently advised plaintiff that she should retain a California lawyer or investigator. See id. However, plaintiff failed to consult with any lawyer until 1983, when she retained present counsel. See id. at 93. Plaintiff alleges that no attorney would take her case because of her inability to pay a fee. See id. at 99.

 DISCUSSION

 Plaintiff commenced the present action on August 22, 1984. The defendant moves for summary judgment on the ground that the action is time-barred by New York's three-year statute of limitations for personal injury actions. *fn2" In opposition, plaintiff contends that summary judgment is improper because the tort of abduction is a continuing wrong, and that the statute of limitations therefore does not begin to run until the occurrence of the last wrongful act. Thus, plaintiff asserts that the claim did not accrue until she saw her daughter Patricia in 1983. *fn3"

 The continuing tort theory defers accrual of a cause of action. See Karen v. State, 111 Misc.2d 396, 398, 444 N.Y.S.2d 381, 384 (Ct. of Claims 1981). For example, the statute of limitations for false imprisonment begins to run only when the imprisonment ends. See id.; see also Whitmore v. City of New York, 80 A.D.2d 638, 639, 436 N.Y.S.2d 323, 324 (2d Dept. 1984); Collins v. McMillan, 102 A.D.2d 860, 861, 477 N.Y.S.2d 49, 50 (2d Dept. 1984); Restatement (Second) of Torts § 899 Comment C (1977). Similarly, under New York law, a claim for false arrest accrues when the plaintiff is released from jail. See Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981); Dailey v. Smiley, 65 A.D.2d 915, 410 N.Y.S.2d 468, 469 (4th Dept. 1978). *fn4"

 However, New York has not extended the continuing tort or successive tort theories to an action for abduction and intentional interference with a parent's rights to custody of her children, and it seems that New York would not do so. *fn5" Although plaintiff cites examples of the application of the continuing wrong theory by New York courts in trespass actions, the Court has been directed to no authority for the proposition that conduct of the type complained of here would be so treated.

 Moreover, the Court is not persuaded that the trespass analogy is appropriate. For purposes of a statute of limitations analysis, the conduct complained of in this case is more analagous to conversion than it is to trespass, which requires only an "interference" with a person's property rights. Conversion, on the other hand, requires a more substantial deprivation, such as the taking or the exercise of dominion or possession inconsistent with the right of the owner. See Sporn v. MCA Records, Inc., 58 N.Y.2d 482, 487, 462 N.Y.S.2d 413, 415, 448 N.E.2d 1324 (N.Y. 1983). *fn6"

 A wrongful deprivation of a parent's right to dominion and custody of her children, which has allegedly continued unabated from 1974 to the present, is more than a mere "interference" with those rights and is, therefore, more closely analogous to a conversion than a trespass. Cf. Sporn, supra, 58 N.Y.2d at 487-88, 462 N.Y.S.2d at 415-16. Since New York law does not recognize conversion as a continuing wrong, see id., it follows that, in a case involving a parent's abduction of a child, the continuing wrong theory should not be applied. Cf. id. ("mere assertion of a continuing right . . . will not be sufficient to have the cause of action deemed a continuing trespass if ...


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