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Estate of Spiegel v. Western Surety Co.8/9/2005
the appellees), and, because of this, Spiegel argues that there was no completed tort (and therefore no cause of action) until September 30, 2002 or August 20, 2003. In support of this argument, Spiegel cites to the New York case of Flushing National Bank v. State, 595 N.Y.S.2d 284, 286 (N.Y. Ct. Cl. 1992). Spiegel cites to this case as standing for the proposition that he was not injured by the "mere failure" of the clerk to record the judgment. Upon a closer reading of this case, however, we find that it lends no support to Spiegel's arguments, not merely because it is a New York case that does not have any binding authority in Mississippi, but also because the holding of the case actually undermines Spiegel's position.
. In the Flushing case, the judgment creditor brought suit against the responsible clerk for failing to properly record a judgment. Id. at 285. Among other things that the Flushing court held that go against Spiegel's arguments in this case were: (1) that the action fell under New York's tort claims act, (2) that New York (unlike Mississippi) does not adhere to the discovery rule for purposes of determining accrual, and (3) that the judgment creditor did not prevail, in part because he failed to "discover" the clerk's failure until four years after its actual occurrence. Id. at 286-87. Specifically on the third point just stated, the Flushing court declared:
While claimant has a right to assume a public officer will properly perform an official function, the failure to properly docket a judgment is an easily ascertainable fact within a short time after the omission occurs. We cannot adopt a rule which in the absence of fraud, would toll the running of the statutory period until claimant discovered the error.
Id. at 286-87. Thus, the Flushing court noted the timing of when the injury was ascertainable, not for purposes of giving the creditor more time in which to bring his action (as Spiegel would have us do here); on the contrary, the purpose of the Flushing court's reference to this timing of the injury issue was to constrict the time in which the creditor should have brought its action. Id.
. Thus, we find Spiegel's argument in this regard to be meritless. The most he has offered in support of his argument is an isolated statement, pulled out of context and offered to support a proposition inconsistent with its original context, from a New York case. But, even if the Flushing case stood for the proposition for which Spiegel cites it, the holding of our own court in Young would prevail over the New York court's holding (which has no binding authority in this state). To restate, the Young case declared that a plaintiff's cause of action against the chancery clerk accrued at the time the clerk failed/neglected to perform an official duty allegedly owed to the plaintiff. Young, 828 So. 2d at 823 ( ). A strict application of the Young holding to this case would place the accrual date sometime in May of 1990 when the clerk failed to properly record the judgment. We point out that we do not here find that the accrual date should necessarily be in May of 1990, and we do not here declare that the Young case is indistinguishable from the case sub judice. Rather, we simply note that Spiegel's citation to the Flushing case lends little support to his arguments.
. In addition to finding Spiegel's argument from New York case law to lack merit, we also note that Spiegel did suffer some actual injury on June 9, 1997, and Spiegel's own arguments demonstrate this. If Spiegel had been diligent in attempting to collect on his judgment some time between presenting the judgment for enrollment on May 2, 1990, and Rayner's first filing for bankruptcy on Dec
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