Mr. Frank Novello, the defendant herein, asserts that Mr. Dorto had previously filed a criminal complaint against him for assault as a result of a January 19, 2003 altercation that is the predicate for his present claim of negligence. In the criminal case and in his deposition, Mr. Dorto alleged that Mr. Novello had yelled and cursed at him, and struck and punched him in the chest with a clenched fist. In addition, Mr. Dorto alleged a cause of action for unlawful imprisonment on said date and February 1, 2003. Under those facts, a one year statute of limitations for intentional torts, pursuant to CPLR §215 (3), would apply. Although Mr. Dorto has couched the matter sub judice as a claim of negligence (which has a three year statute of limitations, pursuant to CPLR §214) presumably to overcome said time limitation, the fact is that the court must consider whether it is an intentional assault claim and therefore requires this Court to dismiss it as untimely (citing, Friedman v. Gallinelli, 240 AD2d 699 [2d Dept., 1997]). Accordingly, Mr. Novello has now moved this court, pursuant to CPLR §§ 3211 (a) (5) and 215, for an order dismissing the plaintiffs' complaint on the grounds that the statute of limitations expired prior to the January 13, 2005 service of the verified complaint herein. Additionally, Mr. Novello asserts that since Mr. Novello's third cause of action for loss of services is derivative in nature, it is contingent on the main claims (citing, Maddox v. City of New York, 108 AD2d 42 [2d Dept., 1985]); hence dismissal of the latter for untimeliness should result in like treatment as to it.

Mr. Dorto, while agreeing that the loss of services claim is derivative in nature, opposes dismissal on the aforementioned grounds, and has crossed moved to restore this matter to the conference calendar and to compel Mr. Novello's appearance for deposition. Mr. Dorto, via his counsel, argues that eventhough Mr. Novello was acquitted of assault following a bench trial, no adjudication was ever had as to whether or not his conduct had been negligent or reckless. Counsel argues that since it is alleged that Mr. Novello's physical conduct upon the person of Mr. Dorto caused both mental and emotional distress that aggravated and activated a heart condition, resulting in a heart attack to Mr. Dorto, issues of fact exists as to whether Mr. Novello's actions [*2]were intentional or negligent or reckless. Counsel also asserts that since Mr. Novello's third affirmative defense claims negligent conduct on Mr. Dorto's part, he (Mr. Novello) should not be heard to deny that the incident arose from negligence. With regards to Mr. Dorto's second claim for malicious prosecution, counsel notes that while actions for false arrest and imprisonment are subject to a one year statute of limitations, the accrual thereof is one year from the termination of the underlying action in the plaintiff's favor, in this instance January 27, 2004 when he was acquitted. Consequently, the action was timely commenced by December 8, 2004 (or January 13, 2005 as alleged by Mr. Novello).

In reply, counsel for Mr. Dorto consents to the restoration of this matter to active status. Counsel adds that Mr. Dorto's deposition transcript and statement given to the responding police

officers both assert that Mr. Novello came at him "with two hands, clinched (sic) fists and punched me in the chest," and thereupon reiterated his argument pursuant to Friedman v. Gallinelli, supra . In that case, plaintiff and defendant were engaged in a heated argument during which the plaintiff was struck in the eye. The Appellate Division held that the matter was essentially an intentional tort cause of action, specifying that a plaintiff cannot "exalt from (sic) over substance by labeling an action as one for negligence." In addition, counsel notes that his assertion of an affirmative defense of comparative negligence was done so as not to waive the same and as part of his ethical obligation to raise all possible defenses in response to a complaint, which, in any event, was negated by Mr. Dorto's deposition. Furthermore, counsel asserts that Mr. Dorto's attorney failed to submit any legal basis for his assertion that the accrual of a malicious prosecution claim commences one year from termination of the underlying action. Finally, counsel contends that plaintiff's counsel's failure to have requested to depose Mr. Novello since April, 2007 should be deemed a waiver thereof, and Mr. Dorto's unequivocal testimony established that the essence of his cause of action is intentional and thereby renders moot any need to depose Mr. Novello.

Intentional torts are governed by a one year statute of limitations (CPLR §215[3]). In general, the time within which an action must be commenced is computed from the time the cause of action accrued to the time the claim is interposed (CPLR §203 [a]). Hence, a false imprisonment begins at the moment of illegal detention and is complete when the detention ceases, at which point the statute of limitations begins to run (See 59 NY Jur. 2d False Imprisonment §126). Since a claim of malicious prosecution requires a plaintiff to prove the

initiation or continuation of legal action against him, the absence of probable cause to commence the proceeding, actual malice, and termination of the proceeding in his favor (See Rivera v. City of New York, 40 AD3d 334, 836 NYS2d 108), it is indisputable that accrual occurs upon cessation of the proceedings.

On the one hand, Mr. Novello characterizes Mr. Dorto's allegations as an accusation that he had yelled and cursed at him, and struck and punched him in the chest with a clenched fist. On the other hand, Mr. Dorto's attorney contends that since Mr. Novello's physical conduct upon the person of Mr. Dorto caused both mental and emotional distress that aggravated and activated a heart condition, resulting in a heart attack to Mr. Dorto, issues of fact exists as to whether Mr. Novello's actions were intentional or negligent or reckless. This court not only disagrees with [*3]Mr. Dorto's counsel, but sees his argument as an attempt to do exactly what the Friedman, supra , court cautioned against; to wit, to "exalt form over substance by labeling the action as one for negligence," even though "based on a reading of the factual allegations, the essence of the cause of action is, as here, assault. . ." (See Friedman v. Gallinelli, supra , citing Dyska v. Partridge, 144 AD2d 337 and Trott v. Merit Dept. Store, 106 AD2d v158). Finally, this court is unpersuaded by the arguments that Mr. Dorso's counsel's failure to have requested to depose Mr. Novello since April, 2007 should somehow be deemed a waiver thereof, and/or that since Mr. Dorto's unequivocal testimony established that the essence of his cause of action is intentional any need to depose Mr. Novello is rendered moot.

Therefore, on the basis of all of the foregoing, this Court hereby restores this matter to the conference calendar, and directs that Mr. Novello shall appear for deposition within a date to be set by the parties not to exceed 60 days from entry of this order. In addition, this court finds that

the Plaintiffs' claim for negligence in actuality a claim for battery and unlawful imprisonment are time barred, in that the one year statute of limitations therefor has expired, while the malicious prosecution and derivative loss of services claims were timely interposed. This constitutes the decision and Order of this Court.

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