JAMES A. HONE, Respondent,
CITY OF ONEONTA et al., Appellants.
Calendar Date: November 13, 2017
Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens
of counsel), for appellants.
Gozigian, Washburn & Clinton, Cooperstown (E.W. Garo
Gozigian of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Coccoma, J.), entered May
20, 2016 in Otsego County, which, among other things,
partially denied defendants' motion to dismiss the
about February 3, 2014, plaintiff sent a letter regarding a
criminal matter to Oneonta City Court that dispersed a
powdery substance when it was opened by court personnel.
Testing conducted to determine whether the substance was
hazardous determined that it was nontoxic. Plaintiff was
arrested a few weeks later and taken into custody. He was
charged with aggravated harassment in the second degree and,
after arraignment, was incarcerated in the Otsego County Jail
for several days before being released on February 21, 2014.
On June 25, 2014, City Court dismissed the charge against
plaintiff. On September 11, 2014, plaintiff, acting pro se,
served an unsworn, handwritten document entitled "Notice
of Claim" on defendant City of Oneonta by certified
mail. Ten days later, counsel for the City sent plaintiff a
letter acknowledging that the City had received
plaintiff's document and stating that the document was
legally insufficient to constitute a notice of claim.
Plaintiff obtained counsel, who commenced this action for
false arrest and imprisonment, damage to personal property,
defamation and malicious prosecution. Plaintiff's counsel
also served an amended notice of claim, without obtaining
consent from defendants or seeking leave of court, and
subsequently filed an amended complaint. Defendants moved to
dismiss the amended complaint and plaintiff cross-moved for
an order disregarding his failure to have his signature sworn
to on the pro se document that he characterized as his notice
of claim. Supreme Court partially granted defendants'
motion by dismissing plaintiff's second cause of action
for damage to personal property, on the basis that the notice
of claim was untimely with respect to that claim, and granted
plaintiff's cross motion by ordering that "any
mistakes, omissions, irregularities or defects in
[p]laintiff's pro se [n]otice of [c]laim" be
disregarded (emphasis omitted). Defendants now appeal.
argue that plaintiff's notice of claim was insufficient
in three respects, specifically, that (1) it was unsworn, (2)
it was untimely with respect to plaintiff's claims for
false arrest, false imprisonment and defamation, and (3) it
was insufficient to provide notice that plaintiff intended to
assert a claim for malicious prosecution. Where there is no
showing of prejudice to a municipality, the fact that a
notice of claim was not verified by a claimant may be
disregarded (see General Municipal Law § 50-e
; Matter of Figgs v County of Suffolk, 54 A.D.3d
671, 672 ; Butler v Town of Smithtown, 293
A.D.2d 696, 698 ; Smith v Scott, 294 A.D.2d
11, 20 ). Defendants have not demonstrated that the
lack of verification prejudiced them in any manner; indeed,
their counsel conceded at oral argument that the lack of
verification could be disregarded in this case. Thus, Supreme
Court properly granted plaintiff's cross motion seeking
an order disregarding plaintiff's failure to have his
signature sworn on the notice of claim.
to commencing a tort action against a municipality, a party
must serve a notice of claim within 90 days "after the
claim arises" (General Municipal Law § 50-e 
[a]; see New York State Elec. & Gas Corp. v
County of Chemung, 137 A.D.3d 1550, 1552 , lv
dismissed 28 N.Y.3d 1044');">28 N.Y.3d 1044 ). A cause of action for
false arrest and imprisonment accrues when a party is
released from confinement (see Brownell v LeClaire,
96 A.D.3d 1336, 1337 ). Thus, plaintiff's claim for
false arrest and imprisonment accrued when he was released
from the Otsego County Jail on February 21, 2014, and his
notice of claim was untimely with respect to that claim
because it was not served until September 11, 2014 - nearly
six months later. The notice of claim is likewise untimely
with respect to plaintiff's defamation claim. A cause of
action for defamation accrues when the allegedly defamatory
statements are made (see Arvanitakis v Lester, 145
A.D.3d 650, 651 ; Milner v New York State Higher
Educ. Servs. Corp., 24 A.D.3d 977, 978 ). The only
dates provided in the notice of claim on which it can be
inferred that any allegedly defamatory statements were made
are February 13, 15 and 18, 2014. Thus, the notice of claim
served on September 11, 2014 - nearly six months later - is
untimely with respect to plaintiff's defamation claim.
for malicious prosecution accrues upon favorable termination
of the underlying criminal action (see Brownell v
LeClaire, 96 A.D.3d at 1337). Thus, as defendants
concede, the notice of claim is timely with respect to
plaintiff's malicious prosecution claim because it was
served within 90 days after the harassment charge was
dismissed on June 25, 2015. However, defendants assert that
the notice of claim was insufficient to apprise them that
plaintiff intended to assert a claim for malicious
prosecution. "The test of the sufficiency of a [n]otice
of [c]laim is merely whether it includes information
sufficient to enable the [municipality] to investigate.
Nothing more may be required" (Brown v City of New
York, 95 N.Y.2d 389, 393  [internal quotation
marks and citations omitted]; see Baker v Town of
Niskayuna, 69 A.D.3d 1016, 1017 ).
notice of claim does not specifically refer to the fact that
he was charged with harassment in the second degree or to the
dismissal of those charges. Nonetheless, plaintiff's
assertions that he was falsely arrested without legitimate
cause, that no crime took place and that City employees acted
maliciously provided sufficient notice to defendants that
plaintiff potentially had a claim for malicious prosecution.
Although they protect different personal interests and are
composed of different elements, claims for "false arrest
and malicious prosecution are kindred actions insofar as they
often aim to provide recompense for illegal law enforcement
activities" (De Lourdes Torres v Jones, 26
N.Y.3d 742, 760  [internal quotation marks and citation
omitted]). Causes of action for false arrest and malicious
prosecution are related closely enough that, in a trial of
both, the court must instruct the jury not to make a
duplicate award of damages (see Putnam v County of
Steuben, 61 A.D.3d 1369, 1372 , lv denied
13 N.Y.3d 705');">13 N.Y.3d 705 ). Moreover, actual malice is an element
of a cause of action for malicious prosecution, but not of a
cause of action for false arrest (see De Lourdes Torres v
Jones, at 759-760). Thus, receipt of a notice of claim
alleging that its agents acted maliciously in executing a
false arrest when no crime had occurred provided the City
with the opportunity to investigate all circumstances related
to plaintiff's arrest, including whether he had been
arrested pursuant to a warrant - which would have insulated
defendants from liability for false arrest (see id.
at 759) - and whether plaintiff's arrest had resulted in
him being charged with, or prosecuted for, a crime.
Accordingly, Supreme Court properly determined that
plaintiff's notice of claim contained sufficient
information to alert defendants of plaintiff's claim for
P.J., Clark, Mulvey and Aarons, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as denied defendants' motion to
dismiss the false arrest and imprisonment and defamation
causes of action; motion granted to that ...