Matter of Furr v City of New York

[*1] Matter of Furr v City of New York 2009 NY Slip Op 50195(U) [22 Misc 3d 1120(A)] Decided on February 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2009
Supreme Court, Kings County

In the Matter of the Claim of Jamal Furr, Petitioner,

against

The City of New York, Respondent(s).



4319/08



The Petitioner is represented by the law firm of Goldstein and Goldstein, by Mark I Goldstein, Esq., of counsel, the respondent the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Julie Rubenstein, Esq., of counsel.

Robert J. Miller, J.

Petitioner Jamal Furr ("Furr") moves pursuant to General Municipal Law §50-e, for an order granting him leave to file a late Notice of Claim against the City of New York ("City") arising out of his claims of false arrest by New York City police officers. The proposed Notice of Claim describes the nature of the claims for personal injuries as a result of the false arrest, malicious prosecution , negligent hiring and retention, negligent supervision, and violations of 42 USC §1983.

Petitioner was required to file a timely Notice of Claim pursuant to General Municipal Law (GML) §50-e arising from an alleged incident on April 5, 2007 and release from jail of April 10, 2007 by July 7, 2007. Furr filed an order to show cause seeking leave to file a late Notice of Claim on February 8, 2008, about ten (10) months after the cause of action accrued and about seven (7 ) months after the ninety (90) day statutory period expired.

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 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 ]). [*2]

A 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]).

Petitioner's application fails to set forth any facts or details which would demonstrate a reasonable excuse as to why petitioner failed to file a timely Notice of Claim. 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]).Consequently, the Court will 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], Casias v City of New York, 39 AD3d 681 [2d Dept 2007]).

Petitioner asserts that knowledge of the incident is imputed to the City through the police officers and because a criminal investigation was conducted relating to petitioner's arrest. However, in Caselli v City of New York , 105 AD2d 251 [2d Dept 1994], the Court when discussing the information contained in police reports or known to a police officer stated that:

"Generally, knowledge of a police officer

or of a police department cannot be considered

actual knowledge of the public corporation itself

regarding the essential facts of a claim

(see, e.g., Williams v. Town of Irondequoit, [*3]

59 AD2d 1049, 1050)...)".

The Court in Caselli also found that where actual knowledge is imputed to a police department, because of the existence of police reports or the involvement of an officers, that other factors need to be present for the Court to grant the relief requested pursuant to GML §50-e. Therefore, the Court, in addition to considering whether the City had actual knowledge of the essential facts within the ninety (90) day period or a reasonable time thereafter through its police officers, will also consider whether there are other factors present in this case to meet the Caselli test.

Petitioner cites Ragland v New York City Housing Authority, 201 AD2d 7 [2nd Dept 1994] for the proposition that, where there is a claim of police misconduct and assault by the arresting police officers, the City is then imputed with the essential facts of the case.

However, this Court does not accept the premise of petitioner's argument that where there is a claim of false arrest (and the arrest paperwork demonstrates only the date, time and place of the arrest) that it was the intention of the Appellate Division, Second Department in Ragland, to impute the City with actual knowledge of the essential facts through the arresting police officer (See, Matter of Black v City of New York, 2008 slip Op 52118(u), 21 Misc 3d 1121 (A) [J. Miller Oct. 27, 2008]) .

Here, the Court examined the proffered documents to see if they provided the City with the essential facts upon which the theory or theories of the claim were based, (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008].), and additionally to see if the petitioner

could demonstrate that there was "other factors" present as discussed in Casselli v City of New York , 105 AD2d 251 [2d Dept 1994].) The Court finds that the arrest records and the criminal disposition paperwork proffered do not contain any facts which would have put the City on notice of the claims of false arrest, negligent hiring and retention, negligent supervision, as there are no facts which would relate to the theories of these claims contained within the arrest records.

The Court in order to consider whether there was an "other factor" considered the assertion by petitioner that "...petitioner was arrested as part of multiple arrests by the Brooklyn South Narcotics Unit, many of whose charges have been dismissed as the officers themselves have been arrested and charged with improprieties surrounding allegations of false arrest" and further the assertion that petitioner was one of the multiple arrests that was investigated in relation to the investigation and charges brought against the Brooklyn South Narcotics Unit police officers. However, there was nothing in the record before the Court to support the assertion made by petitioner's counsel. The record is devoid of any evidence by an affidavit of a person with knowledge or documentary [*4]evidence to show that prior to or during the ninety (90) day GML §50-e period of time after the petitioner's arrest that the City had any knowledge that the police officers had engaged in improper conduct or a false arrest.

The Court will next look to whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. Here the record is devoid of any facts or documents which demonstrate the City had knowledge of the claim within the ninety (90) day

period or within a reasonable time thereafter. Therefore, an almost seven (7) month delay in the filing of the late notice is prejudicial, and the Court finds that the petitioner has failed to demonstrate that the City will not be prejudiced. (Shapiro v Town of Clarkstown, 238 AD2d 498 [2d Dept 1997], Munnerlyn v City of New York, 203 AD2d 437 [2d Dept 1994]).

The Court notes that this decision does not effect petitioner's possible federal §1983 claim as the Notice of Claim requirements of General Municipal Law §50-e do not apply to federal civil rights claims asserted pursuant to 42 USC §1983. ( Felder v. Casey, 487 U.S. 131 [1988], Zwecker v. Clinch, 279 AD2d 572 [2d Dept 2001 ], Pendleton v. City of New York , 44 AD3d 733, [2 Dept.2007]). Additionally, the petitioner's filing of the Notice of Claim is timely as to the claim of malicious prosecution as the ninety (90) day period under GML §50- runs from the date of the dismissal of the criminal charges, on January 17, 2008 and the current petition was filed on February 8, 2008, well within the ninety (90) day period.

Accordingly, the petition to file a late Notice of Claim for the claims of false arrest, negligent hiring and retention and negligent supervision is denied.

The foregoing constitutes the decision and order of the Court.

February 6, 2009_______________________

Robert J. Miller

J.S.C.