Summary
In Matter of Abramowitz v. Guido (61 A.D.2d 1045), this court held that the requirement in Boyle v. Kelley (supra), that a notice of claim is required, may not be evaded by resort to a CPLR article 78 proceeding instead of an action in tort for conversion or by an action upon the equitable principle of unjust enrichment.
Summary of this case from Smith v. ScottOpinion
March 27, 1978
In a proceeding pursuant to CPLR article 78 to compel the Police Commissioner of the County of Nassau to return to petitioner a sum of money which had been taken from his possession by Nassau County Police Officers upon his arrest for criminal possession of a dangerous drug and operating a motor vehicle while under the influence of drugs, the police commissioner appeals from a judgment of the Supreme Court, Nassau County, entered March 1, 1977, which ordered him to return the money. Judgment reversed, on the law, without costs or disbursements, and petition dismissed. The holding in Boyle v Kelley ( 42 N.Y.2d 88) is all-embracing as to the requirement that a notice of claim be timely filed where the gravamen is the wrongful retention by a municipality of money or property after the dismissal of a criminal action in the course of which the money or property had been seized. The requirement may not be evaded by resort to a CPLR article 78 proceeding instead of an action in tort for conversion, or by an action upon the equitable principle of unjust enrichment (see County Law, § 52; General Municipal Law, § 50-e). Gulotta, J.P., Shapiro, Cohalan and O'Connor, JJ., concur.