sitting in prison did nothing to inform him that i'm to let him know that is it had been reversed and he was a free man they say this that they say that their excuse from them or practice some about this is excused because my client is not quote actually innocent of the underlying district court or the federal courts with respect to the claim that you are bringing your client is bringing you're bringing on his behalf for malpractise attorney malpractise it's  court and say here make claims and they are viable that doesn't happen for all of the state law claims at least until august eighth two thousand and twelve and probably until the indictment was dismissed august thirtieth two thousand and twelve because until that happened none of the state law claims were morning your honour's matthew grieco from the state attorney general's office i'm here on behalf of the state trooper defendants on tolle and dorner nearly nearly all of mr allen's claims against the troopers are time barred because they accrued at the latest when he was arraigned a few hours after his arrest in june two thousand and seven section was not filed until november twenty twelve b on the three year statute of limitations for a section three claim brought in new york as mr ayling himself concedes in his opening brief page seventeen his complete does not plead any tortious acts by the after the day of his arrest therefore all of his federal claims could have been brought and he time after his arraignment save for his malicious prosecution claim which of course accrued when his conviction was turned over turned in two thousand and eleven and contrary to the claims in his brief it is clear from the supreme court's decision in wallace versus cato that a claim is not told by a conviction unless the claim itself necessarily impugns the validity of that conviction and malicious prosecution is militias prosecution claim is the only one that would in this case so unless there are specific questions about any of the time bar issues i will just use my limited time to address the malicious prosecution claim he fails to show three out of the four required elements of a malicious prosecution claim he fails to show that you failed to plead i should say the troopers actual malice towards the state troopers and third they have probable cause because it which is established both by the fact of his guilty plea and because his complaint itself pleads the facts necessary to establish probable cause given that he did in possession of the same person so there was probable cause to arrest him for criminal possession of a weapon the second degree which defeats his malicious prosecution claim and also his other claims in the event that they were timely unless the court has any questions i will stop there rockwell good morning your honor is my name is dale out while i'm here pro se the first question you asked of the appellant was how did the district court acquire jurisdiction the answer is connecticut after he got out of jail he moved to connecticut he says this is despite the fact that he told the trial court the pella court everyone else that he still lived in new york so let's assume that his claims true let's assume that he never received a copy of the appellate division order for whatever reason let's also assume that he's right that somehow that's my fault does that matter well the district court says no because there's no proximate cause there's no proximate cause because there's no legal malpractise when  alleged negligence is all you've got and we know this as a matter of law because the new york state criminal procedure law says with three statutes one sixty fifty four seventy forty five four seventy twenty five and in this case the pill to vision even put a specific directive order in its decision so the link in the chain of probable cause between the alleged negligence and the alleged damages is broken there is no probable cause traceable causation back to myself so the only way that allege negligence can become probable cause of damages in this case is if there is no statutory law only if new york criminal procedure law doesn't exist but it does exist so his claim is necessarily premised on the notion that an appellate lawyer is ignorant of the appellate procedure law we know that this law is in place the new york state legislators legislature is an act of statutes for us and that's a at the best then the alleged negligence becomes negligence and your claim that your argument i believe i understand is that that that doesn't establish proximate cause i think that's what the district court is saying that even if are you in communication with your returned from the prison after that than that the last known address we had was the address he left with the appellate court with the trial courts which was with his new hyde park new york but by the time the decision to come out he moved to connecticut and i was supposed to know that that's the  if i was somehow supposed to know that or hire an investigator to look for more soon that is mail no it was never received that's the negligence he's looking for any even if you that's right that's not that's that might work for a negligence case but this isn't a negligence case this is a legal malpractise case so a negligence alone is not enough you've got to have the proximate cause and the district court says the proximate cause comes from the the statutes themselves that they have to be  court clerk they have to clear the rap sheet a lawyer who doesn't claim or clear a rap sheet if i would if he wins this case or anyone wins this the lawyers don't clear a rap sheet that's what the statutes of for that's where the new york state legislature did it and in this court as well if that's what happens lawyers don't clear a rap sheet we don't even have the authority to do it it was so good to have that done if it is not being done well the only way a person would know that it wasn't being done is if you get arrested again that's the only way we feel he ever found out his second parole oyur said wait let me check this out the only way anyone whatever known that i've been on notice that that could have happened was if you got arrested again which is the second proximate cause he got arrested twice which is what was supplied by the ability of vision after he got out of jail he moved to connecticut right then the next address we have is his civilian address in hyde park new york but he wasn't there was he didn't know was returned my mail to him to the prison was returned my mail to him to his civilian address was not returned he says it's because he wasn't there and you said it's certified so if i had the green card we wouldn't be here but every piece of mail i send might be that's true that we might still be here ok the law i just talked about in the fax i just talked about are undisputed in the district court apparently thank you your honor as i represent as you know the collection of duchess county defendants both the public defenders and mr kendall the county clerk  i think the important issue for them goes to the first question your honor and asked and that is when is the accrual date for the causes state causes of action which i believe are the principal causes of action that that he has filed against them the malpractise as opposed for the attorneys on the common law and then legends for the county clerk and we believe that there is absolutely no doubt that those those the  for the public defenders it absolutely accrued on november first two thousand and eleven when the appellate division issued its water that order was very clear it water that the judgment of conviction be reversed in order t suppression motion be granted it ordered that the indictment is dismissed porton tense there and it remitted the matter to the county court from one purpose only to do the one sixty fifty evaluation and in its discretion decide if the record should be sealed and under state law c p r for seventy five twenty the appellate division has the authority to issue that type of order on its own or in th specifically took the authority the legislature gave it and dismissed the indictment there's another section of the c p o the one sixty fifty sub three a which specifically says that a criminal prosecution terminates in the favor of the accused upon the dismissal of the indictment slowing dima was on november first by operation of the appellate division order in this case that's the accrual date for the cause of that action because he was then free of the conviction which is the this prerequisite of amount practice case that arises in a criminal matter it's not when the negligence was committed which is the civil my practice but in the criminal area it's when you're free of the conviction you can you can state a claim in court now he received it on november sixteenth so for the purposes of our argument here we assume he had this obligation and that's when it that's when it would have accrued obviously he couldn't tell he knew about it he didn't have to but that makes no difference to the punchline here is the notice a claim was not filed for all about nine or ten months we're not arguing over which day within that two week window whether was november first or november sixteenth two thousand and eleven when the notice of claim is filed in september two thousand twelve it's well beyond the ninety days the very significant thing is of course it's well within the year in ninety days and the plaintiff still had the right under state law as you want to run for a very familiar with to make a motion to the supreme court for leave claim which would have ended all our problems and as you know the complaint alleges we file the notice of claim but we didn't have to specifically alleges that no notice of claim is necessary in the complain so i must say i must sit when mr katz says there's a remarkable amount practice here by my client i wonder what mr keegan's attorney was doing in not filing an application for leave to file a late notice t that he had all the facts at that time within nine months so he had another nine months to make that motion he didn't do that now there's talk about the court of appeals action well because there was an application to for leave to appeal which was ultimately granted but then of course the appeal was never pursued sua and the argument is well while that was pending the cause of action didn't approve well that's simply a miss appellate water was in place and enforceable and the complaint alleges that the complaint alleges that as of that date mr allen was free of the new york state penal jurisdiction and everything that happened to him after november first was wrong every probation visit he went to was mournful the urine test he took was mournful his incarceration a result was all wrongful and all that happened while the court of appeals case was still pending if the indictment would have given my client's an affirmative defense that he can sue for malpractise because he still subject to the conviction but it accrued on the first if you look at the statutes for seventy five twenty one sixty fifty and of course the most important thing the language of the appellate order that it's we urge inescapable that under state law this cause of action accrued on november first he was free file as notice of claim then start his lawsuit thirty days thereafter if no fifty eight hearing had been held or soon as the fifty eight sharing had been held filed his lawsuit