Figueroa v City of New York

[*1] Figueroa v City of New York 2009 NY Slip Op 50089(U) [22 Misc 3d 1111(A)] Decided on January 15, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 15, 2009
Supreme Court, Kings County

Juan Figueroa and YVELISSA DELEON, Petitioners,

against

The City of New York, THE NEW YORK POLICE DEPARTMENT, DETECTIVE MICHAEL J. DUNPHY, P.O. JASON ARBEENY, and UNIDENTIFIED MEMBERS OF THE NYPD BROOKLYN SOUTH NARCOTIC DIVISION, Respondents.



2950/08



The Petitioners are represented by the law firm of Salenger, Sack, Schwartz & Kimmel, LLP, by Joseph S. Bavaro, Esq., of counsel, the defendant the City of New York is represented by the Michael A. Cardozo, Esq., by Kira Wallisch, Esq., of counsel.

Robert J. Miller, J.

Juan Figueroa and Yvelissa Deleon ("Petitioners") move pursuant to General Municipal Law §50-e, for leave to file a late Notice of Claim against the City of New York, The New York City Police Department, Detective Michael J. Dunphy, Police Officer Jason Arbeeny and the Brooklyn South Narcotic Division (collectively "the City") arising out of their claims of false arrest, false imprisonment, defamation, malicious prosecution, violation of the Petitioners constitutional rights, and negligent hiring, retention and supervision of the police officers by the City. The City cross moves to dismiss Petitioners' complaint and opposes Petitioners' motion to file a late Notice of Claim.

The Petitioners were arrested for criminal charges by the police officer defendants on January 25, 2007 and released from custody two days later on January 29, 2007. On April 1, 2007, there was a report made by the Petitioners to the NY Police Department's Internal Affairs Bureau (IAB) regarding the circumstances surrounding their arrest. The criminal charges were dismissed by Judge Pickett of the Kings County Criminal Court on November 20, 2007. On January 17, 2008, Petitioners filed a summons and complaint against the City defendants. The next day on January 18, 2008, Petitioners served a Notice of Claim without leave of court on the City. Issue was joined on February 25, 2008 when the City served its answer.

Petitioners were required to file a timely Notice of Claim arising from the January 25, 2007 arrest for their claims of false arrest, false imprisonment, defamation, and negligent hiring by April 25, 2007, as the claims accrue from the date of the alleged torts. (Bennett v City of New York, 612 NYS2d 201 {204 AD2d 587} [2nd Dept 1994], [*2]Jackson v Police Dept. of the City of New York, 119 AD2d 551 [2nd Dept 1990]). The current petition to file the late Notice of Claim was made on March 10, 2008, fourteen (14) months after the date of the arrest and eleven (11) months after the GML§50-e ninety (90) day period to file the Notice of Claim had expired.

As to the claim for malicious prosecution, that claim accrues from the dismissal of the criminal charges against both Petitioners on November 20, 2007. (Leung v City of New York [1st Dept. 1995]). Petitioners were required to file a timely Notice of Claim by February 18, 2008.

Service of a Notice of Claim is a condition precedent to the commencement of a tort action against a municipality. (Clayton Industries, Inc. V City of Newburgh, [17

AD3d 309, 2d Dept 2005]). The failure to serve the notice within the GML §50-e ninety (90) days makes it a nullity. (Laroc v City of New York , 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007],

Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ]). Therefore, the Notice of Claim served on the City, without leave of court on January 18, 2008, as to the claims associated with the false arrest, is an invalid Notice of Claim. As it relates to those claims, the Court considers the petition to serve the late notice filed on March 10, 2008.

As to the claims related to the false arrest, the Court in its discretion may extend the time under GML §50-e to serve a Notice of Claim. In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely Notice of Claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. (Acosta v City of New York, 39 AD3d 629 [2nd Dept., 2007], Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2nd Dept 1998]).

Petitioners' application fails to set forth any facts or details which would demonstrate a reasonable excuse as to why Petitioners failed to file a timely Notice of Claim. The Courts have recognized limited excuses for failure to file a timely Notice of Claim. If Petitioners' sole argument is that they did not want to file the Notice of Claim because of the pending criminal charges, then in all cases where there are criminal charges pending, there would be a reasonable excuse for the delay. Furthermore, the Courts have not accepted that ignorance of the law serves as a valid excuse for failure to file a Notice of Claim. (Astree v New York City Transit Authority, 31 AD3d 589 [2d Dept 2006], Gofman v City of New York, 268 AD2d 588 [2d Dept 2000], Saafir v Metro-North Commuter R. Co. [2d Dept 1999]). However, in determining

whether to permit the filing of a late Notice of Claim, the presence or absence of any one factor under GML §50-e is not determinative, and the absence of a reasonable excuse for the delay is not necessarily fatal. (Nardi v County of Nassau, 18 AD3d 520 [2nd Dept 2006]).

The Court will next consider whether the City received actual notice of the facts constituting the claims within ninety (90) days from its accrual or a reasonable time thereafter. Actual knowledge of the essential facts of the claim must have been acquired by the City, not just knowledge of the occurrence. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008]).

As to whether the City received actual notice of the essential facts surrounding the claims of false arrest, false imprisonment, defamation and negligent hiring, training, and supervision, the Petitioners assert that the City had knowledge of the facts because the police department is in possession of the records and reports related to the criminal charges. The Petitioners' attorney in response to a question at oral argument on the application subsequently provided the Court with the records related to the arrest and filing of criminal charges and a record of an interview given by Petitioners to the Internal Affairs Bureau (IAB) of the NY Police Department.

The Court in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], stated that:

"In order to have actual knowledge of the

essential facts constituting the claim, the

public corporation must have knowledge

of the facts that underlie the legal theory

or theories on which liability is predicated

in the notice of claim; the public corporation

need not have specific notice of the theory

or theories themselves." (emphasis added)

The Court after careful review of the criminal records was unable to find any

information recorded within the criminal record which would provide the City with facts which underlie the theories of negligence or intentional tort within the ninety (90) day period or a reasonable time after the date of arrest and imprisonment.

However, the Court additionally reviewed the records of the IAB report filed by [*3]

the Petitioners against the arresting officers on April 1, 2007, which was made within the ninety (90) day GML §50-e period. The Court finds that the report contains facts which underlie the

legal theories on which the claims are based. This is unlike the case of Matter of Black v City of New York, 21 Misc 3d 1121(A) [2008], in which this Court recently decided that Civilian Complaint Review Boards (CCRB) records made within the ninety (90) day period were not notice to the City, as the Court found that the CCRB is not a City agency and that therefore the City could not have received notice.

The City relies on Camilleri v County of Suffolk, 190 AD2d 669 [2d Dept 1993] where the Appellate Division did not consider information obtained in an IAB interview. In Camilleri, the IAB interview conducted by the Suffolk County Police Department took place sixty (60) days after the ninety (90) day period had expired. Here the IAB interview took place within the ninety (90) day period. Thus, City employees had a detailed written report of the incident and the facts that underline the theory of the claims.

Therefore, the Petitioners have demonstrated that the City acquired actual knowledge within the ninety (90) day GML §50-e period of the essential facts of the claims for false arrest, false imprisonment, defamation, and negligent hiring, training and supervision.

Lastly, as to whether the City would be prejudiced by the eleven (11) month delay in service of the late Notice of Claim for the claims related to the false arrest, the Court of Appeals has recently observed that "proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay." (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006].) Since the Court has found that the City

had knowledge of the essential fact of the case within the ninety (90) day period, there would be minimal prejudice to the City.

The Court next considers the petition for the late filing of the claim for malicious prosecution. The Court considers the Notice of Claim filed on January 18, 2008 timely as to the

malicious prosecution claim, even though it was filed one day after the filing of the summons and complaint. It is undisputed that the City had notice of the facts surrounding the criminal dismissal associated with the claim within the ninety (90) day period under GML § 50-e and that as a result, the City does not suffer any prejudice by [*4]allowing the malicious prosecution claim.

Accordingly the Court grants the petition to file a late Notice of Claim. The City's cross-motion to dismiss the summons and complaint is denied.

The foregoing constitutes the decision and order of the Court.

_______________________

Hon. Robert J. Miller

J.S.C.

January 15, 2009