Small Claims False Arrest Statue of Limitations

What is the name of your state? NY

On 2/12/2007 I was falsely arrested based on false statements from my former employer.

I hired an attorney ($750), and at the first court appearance after the arraignment, The ADA asked the judge to dismiss the charges in the interest of justice. The judge did dismiss the charges.

I told the ADA "Thank You" afterwards, and her reply was "after I got the whole story it was an easy call."

I filed a Small Claims Court case on 2/11/2008, figuring I was within the one year statute of limitations for such a case, but lately came across a page on the internet that said a case had to be filed and SERVED within the statute of limitations.

Last year when I spoke with the attorney who handled the criminal part for me, he told me I had one year from the date the case got dismissed in court to file my claim (and if he hadn't retired since then I wouldn't be bothering this forum with these questions.

Could anyone please clarify the matter for me?

Thanks in advance!

BL’s reference contradicts what your prior attorney told you and anything else that you know. It tells you that you have more than enough time. It might be best to take that information with a grain of salt. (I suspect that it’s too general.)

What is your question? Should you trust your former attorney or a page on the internet? Well, assuming that the SOL is one year, I’ve never known of an SOL that required both filing and service, but I’m not NY and it’s not to say that NY doesn’t have such an SOL for this tort (although I’d be strongly inclined to doubt it).

I infer that your case was timely filed but the defendant hasn’t been served. Are you looking for someone to research NY statutes for you? Actually, we often do to respond to questions, but you could too, and it doesn’t seem onerous in this case, unless a NY maven can chime in with certainty. If you timely filed but haven’t served and the web page correctly gave you NY law, you’ve missed your chance to have a hearing on the merits (if you do serve and if that is a defense and if your defendant is smart enough to realize the available defense and raise it). A lot of “ifs”.

The SOL is a defense that must be raised and you didn’t post the web page, so we don’t know exactly what it said or who said it. For the moment, why not trust your former attorney and keep going, if you want a hearing? That’s not to say that you’ll prevail, but what was your option – just stop trying, now that you’ve started?

NY State

http://www.nycourts.gov/courts/nyc/smallclaims/pdfs/smallclaims.pdf

NYC

http://www.nycourts.gov/courts/nyc/smallclaims/startingcase.shtml


SOL- http://www.nolopress.com/article.cfm/ObjectID/8F7C7F58-A292-433F-AE1E162E16B00023/catID/D80CF756-DBF6-432D-B625E7D1A29183D0/104/308/273/ART/

BL – We’re all contributing, voluntary members here, and I’m not getting into a contest or argument with you. I respect Nolo’s product and I respect you. Nolo says 3 years for a personal injury action, Legalzoom says the same and you endorse that.

Here’s the NY statute. Let the OP decide. Frankly, Scarlett, . . . .
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

Look under CVP, Article 2, Section 215:
§ 215. Actions to be commenced within one year: against sheriff,
coroner or constable; for escape of prisoner; for assault, battery,
false imprisonment, malicious prosecution, libel or slander; for
violation of right of privacy; for penalty given to informer; on
arbitration award. The following actions shall be commenced within one
year:

Conversely, let a NY wizard resolve it for the OP.

dcatz said:

BL – We’re all contributing, voluntary members here, and I’m not getting into a contest or argument with you. I respect Nolo’s product and I respect you. Nolo says 3 years for a personal injury action, Legalzoom says the same and you endorse that.

Here’s the NY statute. Let the OP decide. Frankly, Scarlett, . . . .
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

Look under CVP, Article 2, Section 215:
§ 215. Actions to be commenced within one year: against sheriff,
coroner or constable; for escape of prisoner; for assault, battery,
false imprisonment, malicious prosecution, libel or slander; for
violation of right of privacy; for penalty given to informer; on
arbitration award. The following actions shall be commenced within one
year:


Conversely, let a NY wizard resolve it for the OP.

Click to expand...

Then perhaps someone should set the poster straight on the difference between the Court of claims ( which requires service ),and small claims court ( which does not ) , because he stated he filed small claims .

BL – this should stop, because it will mislead readers and it’s getting the OP’s issue off-track.

I’m CA; you’re “good old US of A”, so I don’t really know. As I understand it, the Court of Claims is the exclusive forum for claims against the State of New York. Correct me, if I’m wrong. The OP is not suing the state.

The statute referenced could include claims for torts committed “under color of authority” and, thus, include claims against the City and State and employees of the City and State, but it is not limited. It is simply an SOL for specified torts. Whatever state you’re in is likely to have multiple SOLs for varying torts. I know mine does, yet the Nolo link says the personal injury SOL for mine is 2 years. What’s more important is that the Nolo link also says “We provide this chart as a rough guide.” For me, “rough” is the operative word.

There is a relation between SOL and service of process, but it is not relevant to the OP’s question on the facts posted. Tolling and the like are interesting concepts, worthy of discussion in the proper context, but I don’t see this as being such a context and, if not, they only “muddy the waters”.

Of course NY Small Claims requires service. Any court in any state requires service of process to commence an action. That’s part of your Constitutional right to due process and is evident by reading your own links. As a commercial creditors’ rights attorney, if you can tell me a state that doesn’t require service, I’ll move there tomorrow. The idea that I could initiate an action, not notify the defendant and take a judgment is delicious but essentially inconceivable.

I don’t know if the OP has a viable claim or even one that can be heard in NY Small Claims (certain types of claims are not within SC jurisdiction, and that differs by state). As to the posted question, I do not believe that he is foreclosed by the failure to make service within one year, but an on-going failure may make problems, as I understand NY law regarding SOL. As for me, I’m finished with this thread.
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(The OP has concluded and so should we, BL. I don’t know if we ended up agreeing or disagreeing, but I’ve said before that I think you have the best sig on FA, and I still think that. I just didn’t expect to be part of a thread to exemplify it.)

Thanks to all who contributed for your input!

bj21

Well, I suppose I'm the closest to a NY wizard around, but I'm not reading all those links, so some of this may be redundant. Live with it

NY SOL for intentional torts is 1 year; (non-professional malpractice)/negligence is 3. The Court of Claims, which is limited to suits against the state, has all sorts of weird requirements not found in other courts, and I suspect someone may have tripped on the 90-day notice requirement it has. (Irrelevant to the OPs problem).

The SOL for small claims tolls once you file the claim with the court. You then have 4 months to effectuate service (either via paying the court to mail it for you or by personal service). There are also a few other weird "deadlines" (i.e. if you pay for the court to mail it and doesn't get returned by the Post Office within 21 days, service is presumed valid).

Thus, the big question is what claim(s) did the OP make in his small claims complaint?


PS: http://www.courts.state.ny.us/courts/nyc/smallclaims/index.shtml
Saves a lot of reading of the actual statutes