Opinion
January 14, 1971
Appeal from an order of the Court of Claims, entered June 13, 1970, denying the State's motion to dismiss the claim on the grounds that it was not timely filed and, further, that it failed to state a cause of action. Claimant was arrested on July 8, 1969 for criminal possession of a dangerous drug. The following day she was released on bail. On December 16, 1969 she was tried and acquitted. A claim was filed on March 16, 1970 wherein claimant alleges that the charge was made maliciously and without probable cause, and her arrest and imprisonment were malicious, illegal, unjust and unlawful in that she had committed no offense. The State contends that the claim for false arrest/imprisonment was not filed within the required 90-day period. On oral argument the claimant agreed. As to the sufficiency of the cause of action for malicious prosecution, it is fundamental that the courts will liberally construe a pleading. It is their desire to afford a litigant his day in court. While there are no facts alleged from which malice and lack of probable cause may be inferred, on the present record, the bare allegation, in our opinion, is sufficient. ( Graham v. Buffalo Gen. Laundries Corp., 235 App. Div. 246, 247, affd. 261 N.Y. 165; see Armstrong v. Mishkin, 286 App. Div. 864.) We do not decide the merits. Order modified, on the law and the facts, so as to grant the motion dismissing the cause of action for false arrest/imprisonment, and, as so modified, affirmed, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur.