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Ruggiero v. Phillips3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
OPINION AND ORDER
Appeal from an order of Supreme Court, Herkimer County (Kirk, J.), entered March 30, 2001, which, inter alia, denied plaintiff's motion to renew and reargue and granted defendants' cross motion to reargue.
It is hereby ORDERED that the appeal from the order insofar as it denied reargument be and the same hereby is unanimously dismissed (see, Empire Ins. Co. v Food City, 167 AD2d 983, 984) and the order is modified on the law by reinstating the libel causes of action against defendants James Phillips, individually, and the Village of Ilion and as modified the order is affirmed without costs.
Plaintiff commenced this action against defendants, James Phillips and the Village of Ilion (Village), alleging, inter alia, causes of action for libel and the violation of plaintiff's civil rights pursuant to 42 USC § 1983. The primary issue presented on this appeal is whether the libel causes of action against both Phillips and the Village had to be commenced within one year and 90 days of their accrual pursuant to General Municipal Law § 50-i (1) (c) or within one year of their accrual pursuant to CPLR 215 (3). We conclude that General Municipal Law § 50-i (1) (c) applies to the libel causes of action against both Phillips and the Village and thus that the order should be modified accordingly.
(*2) Plaintiff is a correction officer with the New York State Department of Corrections. After leaving work on April 10, 1999, he was pulled over in his vehicle by Phillips, a Village police officer, for speeding. Plaintiff was given a ticket for traveling 72 miles per hour where the speed limit was 55 miles per hour. Phillips informed his supervisor about the incident and prepared a written report. The report was classified as "disorderly correctional officer". According to Phillips, plaintiff questioned why he was pulled over and repeatedly used profanity, and Phillips described plaintiff as irate and belligerent. The report was faxed to plaintiff's supervisor on April 16, 1999.
Plaintiff served a notice of claim upon the Village on July 13, 1999 and commenced this action against Phillips and the Village on July 13, 2000. The complaint alleges 12 causes of action, only three of which are at issue on this appeal: the third cause of action against Phillips, for libel; the fourth cause of action against the Village, for libel; and the 12th cause of action against the Village, for the violation of plaintiff's civil rights pursuant to 42 USC § 1983. In a preanswer motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), defendants contended, inter alia, that the libel causes of action were time-barred pursuant to CPLR 215 (3) and that plaintiff failed to state a cause of action under 42 USC § 1983. Supreme Court agreed with defendants that the libel cause of action against Phillips was time-barred pursuant to CPLR 215 (3), but determined that the libel cause of action against the Village was timely pursuant to General Municipal Law § 50-i (1) (c). In addition, the court dismissed the 42 USC § 1983 causes of action and all remaining causes of action in the complaint for failure to state a cause of action. The court thereafter denied plaintiff's motion to reargue and renew and granted defendants' cross motion to reargue. Upon reargument, the court dismissed the libel cause of action against the Village, determining that CPLR 215 (3) applied to the Village as well as Phillips. We conclude that the libel causes of action against Phillips and the Village should be reinstated.
The libel causes of action agai
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