Matter of Irizarry v City of New York

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[*1] Matter of Irizarry v City of New York 2009 NY Slip Op 52169(U) [25 Misc 3d 1218(A)] Decided on October 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2009
Supreme Court, Kings County

In the Matter of the Application of Derick Irizarry, Petitioner,

against

The City of New York, New York City Police Department, Police Officer Anibal Morales, Police Officer Fredrick English, Police Officer Hunt, Police Officer Cordiner, Police Officer Mcsweeney, Police Officer Rostant, Sgt. Desmond Morales and Police Officers "John Does", whose identities are currently known, Respondents.



13424/09



The petitioner is represented by Morton Povman, P.C. by Morton Povman, Esq., of counsel, the respondents are represented by Michael A. Cardozo, Esq. Corporation Counsel of the City of New York by Mary Ann Holden, Esq., of counsel.

Robert J. Miller, J.



Petitioner Derick Irizarry ("Irizarry") moves pursuant to General Municipal Law(GML) §50-e, for an order granting him leave to file a late Notice of Claim against the City of New York, the New York City Police Department ("NYPD"), Police Officer A. Morales, Police Officer F. English, Police Officer Hunt, Police Officer Cordiner, Police Officer McSweeney, Police Officer Rostant and Sgt. Desmond Morales (collectively the "City"). The claims against the City arise out of three arrests of Irizzary by the NYPD on November 21, 2006, August, 5, 2007 and June 25, 2008 and for the dismissal of those charges respectively on May 21, 2007, November 12, 2008 and October 20, 2008.

The petitioner asserts that he was employed as a tow truck driver for Montalvo and Son Auto Repair Center Ltd and Underground Express Towing (collectively "Montalvo"). His assignment was to tow vehicles improperly parked in the Atlantic Mall Shopping Center. Some of the vehicles towed by Irizarry were private vehicles owned by the NYPD officers who would improperly park at the shopping mall because the New York State Department of Motor Vehicle's hearing offices were located next to the mall. The proposed Notice of Claim asserts that the police officers would allegedly place certificates/plaques in their private car's windshields identifying them as being owned by police officers. Irizarry was directed by the Atlantic Mall that the vehicles were improperly parked and to tow them. Petitioner asserts that as a result of the towing of private vehicles owned by police officers he was subjected to a pattern of police misconduct. The proposed Notice of Claim asserts that he has claims of false arrest, false imprisonment, malicious prosecution, intimidation and harassment. [*2]

It is well-settled that the Court is without jurisdiction to permit the plaintiff to comply with the Notice of Claim requirement after the expiration of the statute of limitations. (Hochberg v City of New York, 63 NY2d 665 [1984]). GML §50-e(5) states that "the extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation." Therefore since the one year and ninety day (90) statute of limitations under GML §50-i(c) has expired for the false arrest/false imprisonment claim arising from the November 21, 2006 arrest, the malicious prosecution claim arising from the dismissal of those charges on May 21, 2007 and the false arrest/false imprisonment claims arising out of the August 5, 2007 arrest, the Court cannot consider the application for the late filing of a Notice of Claim with respect to those incidents.

As to the claims of malicious prosecution in connection with the August 5, 2007 arrest for which charges were dismissed on November 12, 2008 and as to the claim of false arrest/false imprisonment arising out of the arrest on June 25, 2008, and the malicious prosecution of the claims arising out of the dismissal of charges on October 20, 2008, the Court will consider the application for the late Notice of Claim.

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 ]).

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]).

The petitioner asserts that he was "afraid to file any formal complaint against the New York City Police Department or Police Officers because [he] did not want to be further harassed." Petitioner outlines in his affidavit numerous incidents where specific police officers verbally threatened him with additional arrests, the traffic summons he received as a result of towing police vehicles and various violations issued from the NYPD officers to petitioner from June 17, 2006 through April 10, 2007. Petitioner attaches copies of traffic violation notices as well as the arrest and dismissal records of all three arrests by the NYPD.While Courts have found that imprisonment is not a reasonable excuse for the delay (Lavalliiere v Department of Corrections of City of New York, 304 AD2d 370 [ 1st Dept. 2003]) and that pending criminal charges are not a reasonable excuse for delay (Julie F. V City of NY, 50 AD3d 794 [ 2nd Dept 2008]) in this case where the actual behavior that is alleged in the proposed Notice of Claim relates to purposeful intimidation and harassment in order to discourage the petitioner from going forward with legal actions, it is within the discretion of the Court and the Court finds that the [*3]petitioner has set forth sufficient facts to show that he has a reasonable excuse for the delay. (GML § 50-e(5), Matter of Gonzalez v City of New York, 60 AD3d 1058 [2d Dept 2009]).

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. (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 because they were directly involved with the claims of false arrest. However, in Caselli v City of New York , 105 AD2d 251 [2d Dept 1994], the Appellate Division 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".

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 police 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 cases to meet the Caselli test.

The Court has reviewed cases where there has been a claim of police misconduct and the City has been found to have been imputed with knowledge (Ragland v New York City Housing Authority, 201 AD2d 7 [2nd Dept 1994], Tatum v City of New York, 161AD2d 580 [2d Dept 1990], McKenna v City of New York, 154 AD2d 655 [2d Dept 1990], and Matter of Reisse v County of Nassau , 141 AD2d 649 [2d Dept 1988]). In each case, "other factors" as contemplated by Caselli were present.

The Court finds that the personal knowledge held by the individual officers, which would impute the knowledge of the essential facts of the claims to the City, the arrest and dismissal documents, the motor vehicle summons, alone are not sufficient to provide the "other factors".

However, the petitioner provided the Court with a copy of a summons and complaint filed on February 2, 2008 for similar claims by the petitioner's employer, Montalvo, in which Irizarry is listed as being employed by the tow truck company. The summons and complaint in paragraph 67 describes that Irizarry had false charges brought against him by the NYPD. The petitioner further attaches two letters dated March 7, 2007 and June 21, 2007 addressed to Police Commissioner, Raymond Kelly alerting the Commissioner to an alleged repeated pattern of harassment and retaliation aimed at the tow truck company and its employees. Petitioner in this [*4]case has provided the Court with numerous instances that the Court considers to be "other factors" and all of these factors together with the documents already identified impute knowledge of the essential facts of the claims to the City.

Lastly, the Court will look to whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. On the false arrest charge arising from the June 25, 2008 arrest the petition is nine (9) months and seven (7) days late, on the malicious prosecution claim arising out of the dismissal of charges on November 12, 2008, the petition is four (4) months and twenty (20) days late, and on the malicious prosecution claim arising out of the October 20, 2008 dismissal, the petition is five (5) months and twelve (12) days late. The City asserts that they will be prejudiced because they did not have the opportunity to "conduct a prompt investigation of the facts and circumstances [ ] while the information was still fresh and readily available", that the delay creates "the very real danger that changed conditions would prevent an accurate reconstruction of the circumstances existing" at the time of the incidents and that the "City has been denied the opportunity to locate and examine witnesses while their memories are still fresh". The Court does not find any of these reasons persuasive as the incidents do not arise out of transitory conditions, the witness/police officers are in the control of the City, and the regular job of police officers requires them to review documentary records and recall facts related to their arrests.

In addition, there is a pending case in which the City is currently defending some of the same police officers involved in these claims for the same actions. Accordingly, there will be minimal prejudice in allowing the filing of the late Notice of Claim.

Accordingly, the Court finds that the claims of malicious prosecution arising out of the dismissal of criminal charges on November 12, 2008, the false arrest and false imprisonment charges arising out of the arrest on June 25, 2008 and the malicious prosecution charges arising out of the dismissal of criminal charges on October 20, 2008 are deemed served nunc pro tunc as of June 30, 2009.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

October 15, 2009



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