Opinion
008444/08.
January 12, 2009.
Massimo Panetta, P.C., Attorneys for Plaintiff, 99 Quentin Roosevelt Avenue Ste. 201, Garden City, NY.
Ahmuty, Demers McManus, Esqs., Attorneys for Defendants United Artists Theatre Group, LLC, United Artists Company and Regal Cinemas, Inc., Albertson, NY.
Mulholland, Minion Roe, By: John A. Beyrer, Esq., Attorneys for Defendant Michael K. Matthews, Williston Park, NY.
The following papers have been read on this motion: Notice of Motion, dated 10-29-08 .................. 1 Affirmation in Opposition, dated 12-2-08........... 2 Reply Affirmation, dated 12-18-08 ................. 3
The motion of defendant Matthews to dismiss the Fifth Cause of Action for intentional infliction of emotional distress, based on CPLR § 321l(a)(5) statute of limitation, is denied.
Defendant Matthews, an usher in a theater owned and or operated by co-defendants struck and injured the plaintiff, a theater patron, on January 1, 2006. Defendant was arrested on a charge of a violation of PL § 120.00(1), Assault in the Third Degree, a Class A Misdemeanor. On December 21, 2006, defendant pleaded guilty to the reduced charge of a violation of PL § 240.20(7), Disorderly Conduct, as a violation, and on the same day, a sentence of a one year conditional discharge and fine was imposed.
This action was commenced on May 7, 2008, more then two years after the event and more then one year after the conviction. The amended complaint alleges as is pertinent here, a Fifth cause of action against defendant for intentional infliction of emotional distress, and other claims that might be deemed to be based on intentional conduct, which defendant now moves to dismiss on the grounds that since the action was commenced more than one year after the incident, it is barred by CPLR § 215 which requires that an action for intentional acts must be commenced within one year after the conduct and that this action was commenced beyond more than one year after the event.
Plaintiff counters that he is entitled to the benefit of CPLR § 213-b(1) which provides in substance that an action by a crime victim to recover damages from a defendant convicted of a crime which is the subject of the action may be commenced within seven (7) years from the date of the crime. The statute (hereinafter referred to as the Saving Extension) is quoted in full as follows:
Notwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime or (2) convicted of a specified crime as defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law which is the subject of such action for any injury or loss resulting therefrom within ten years of the date the defendant was convicted of such specified crime.
Plaintiff alternatively relies on CPLR § 215(8)(a) which in substance provides that a crime victim may commence an action within one (1) year from the termination of the criminal action, based on the same event, and suggests that the one (1) year period does not begin until after the defendant has completed his/her sentence. Here, that would be one year after the one year period of conditional discharge imposed on defendant would have expired, thus leaving plaintiff until December 21, 2008 to commence.
CPLR § 215(8)(a) states as follows:
Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.
Defendant contends that neither CPLR § 215(8)(a) nor the Saving Extension preserves the complaint because those statutes are predicated upon conviction of a crime, and that defendant pleaded guilty to disorderly conduct which is a violation and not a "crime" as defined in Penal Law. See PL § 10.3 (violation)-10.4 (misdemeanor) and 10.6 (crime).
Defendant is correct that CPLR 215(8)(a) does not apply, however, it is not necessary to reach the issue of whether defendant was convicted of a Penal Law defined crime.
The statute is inapplicable because it gives a claimant until one year after termination of the criminal action and does not require that there be any specific result. Thus, even an acquittal in the criminal action triggers the one year extension.
However, CPL § 1.20 which is cross referenced by CPLR § 215(8)(a) defines the termination of a criminal action as the date of imposition of sentence or some other final disposition. CPL § 1.20(16)(c). See also Dynamic Chemicals, Inc., v. Ackerman Mechanical Services, Inc., 867 NYS2d 820, 822 (4th Dept. 2008). In this case, the criminal action terminated on December 21, 2006, defendant's sentencing date, which is more then one year before commencement of this action. There is no support for plaintiff's contention that the criminal action terminated after the one year period of conditional discharge and the contention that the extension period should begin from the date the sentence is completed would extend the defendant's exposure to a civil action for more years than is either just, necessary or reasonable.
This action is timely by reason of the application of the Saving Extension and it is for that reason that the motion is denied. As a procedural statute, the Saving Extension has been liberally construed and applied expansively as it is designed to provide a remedy to crime victims. The Saving Extension does not define "crime", does not limit the crimes to which it is applicable, and does not limit the term "crime victims". Thus, the terms "crime" and "crime victims" were not intended to be restricted by reference to other statues such as the Executive Law or as here, the Penal Law. It appears that it is only when there is a lack of causal connection that application of the Saving Extension has been denied. Coggins v. County of Nassau, 2008 WL 2522501, p. 13, (E.D.N.Y. 2008). The case of Vasquez v. Wood, 18 AD3d 645 (2d Dept. 2005), which did not apply the extension gives sparse facts but relies principally on Boice v. Burnett, 245 AD2d 980, 981 (3rd Dept. 1997); Villanueva v. Comparetto, 180 AD2d 627, 629 (2d Dept. 1992); and Jordan v. Britton, 128 AD3d 315, 319 (4th Dept. 1987), which dismissed causes of actions based on a lack of causation or a claim predicated on vicarious liability. Thus Vasquez, should not read as altering the standard for application of the Saving Extension.
The legislative history of the Saving Extension supports an expansive rather than a restrictive interpretation and has been recited in several cases. See eg., Williams v. Congregation Yetev Lev, 2004 WL 2924490, p. 7 (S.D.N. Y. 2004), National Union Fire Ins. Co. of Pittsburgh v. Erazo, 187 Misc 2d 194, 197 (Civ.Ct. N.Y. County 2001) and Elkin v. Cassarino, 248 AD2d 35 (2d Dept. 1998). The Saving Extension is not intended to incorporate restrictive definitions and a broad interpretation is warranted in order to conform to legislative intent id at 38-39. The Saving Extension applies to "all crimes that occur in New York, whether or not the crimes are defined by New York Law or are prosecuted in New York State Courts" id at 41. The focus is on allowing an aggrieved plaintiff to pursue a civil remedy based on the underlying conduct.
Inasmuch as the Saving Extension does not define or incorporate definitions from other statutes and the action is based on behavior by the defendant which allegedly caused plaintiff's injuries and for which there are elements of criminality, this action has been timely commenced and dismissal is denied.
All parties shall appear at a preliminary conference at the Supreme Courthouse, 100 Supreme Court Drive, Mineola, N.Y., on February 9, 2009, at 9:30 a.m. No adjournments of this conference will be permitted absent the permission of or Order of this Court. All parties are forewarned that failure to attend the conference may result in judgment by default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions ( 22 NYCRR 130-2.1 et seq.).
This shall constitute the Decision and Order of this Court.