Matter of Bibbs v City of New York

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Matter of Bibbs v City of New York 2012 NY Slip Op 30403(U) February 17, 2012 Sup Ct, NY County Docket Number: 112037/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 212312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 5 Justice INDEX NO. MOTION DATE . v . 0 MOTION SEQ. NO. MOTION CAL. The followlng papers, numbered 1 to 2 \tnJf ... I I I Answsrlng Affldavits - Exhlblts Replying Affldavlts Cross-Motion: NO. were read on thls motlon to/for Notlce of Motion/ Order to Show Cause - Affldavits - Exhlblts 01 t , u . S k AV C n h i t I Y~~ R$ NUMPERED a 0 Yes Upon the foregoing papers, It Is ordered that this motlon Check one: 0 FINAL DISPOSITION m O N % N A L DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE r] SUBMIT ORDER/ JUDG. fl SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 X ---------1_1"11_____-"----111-------"1-----------"--------------------"- In the Matter of the Claim of: LAURA BIBBS, Index No. 112037/11 Argued: 11/15/11 Petitioner, DECISION & ORDER For Leave to Serve a Late Notice of Claim, Nunc Pro Tunc, -againstTHE CITY OF NEW YORK, POLICE OFFICERS "JOHN DOE" (First and last names being fictitious, plural and presently unknown), NEW YORK CITY POLICE DEPARTMENT, For petitioner: Spencer C. Gibbs, Esq. Rawlins & Gibbs, LLP 3 Hamilton Terrace, Suite One New York, NY 1003 1 2 12-222-7005 ~ ¬ 23 I' 0 " For City: John Orcutt, ACC Michael A. Cardozo Corporation Counsel 100 Church Street, 4* Floor New York, NY 10007 212-442-6851 By order to show cause dated October 24,201 1,petitioner moves pursuant to General Municipal Law 5 50-e(5) for an order deeming her notice of claim timely served, nuncpro tunc. Respondent City opposes. J. BACKGROUND On July 15,201 1, petitioner was arrested for criminal possession of a controlled substance in the seventh degree (Penal Law 5 220.03) and incarcerated for 24 hours. (Affirmation of Spencer C. Gibbs, Esq., dated Oct. 21,201 1 [Gibbs Aff.], Exh. B). [* 3] Sometime thereafter, petitioner retained counsel who attempted to contact her within 90 days of the incident using telephone numbers she had given him, but was unsuccessful until October 18,2011, when petitioner s friend provided him with an operable number. (Id.). A day later, 95 days after the incident, petitioner served respondents with a notice of claim, describing the nature of her claim as [a]ssault, wrongful arrest and detention, and malicious prosecution . . , . (Id., Exh. A). By afidavit dated October 2 1,201 1, petitioner states, inter alia, that she was arrested and detained on July 15,2011, that multiple officers, the names of whom she does not know, were involved in her arrest, and that the charges against her are still pending. (Id., Exh. B). 11. CONTENTIONS Petitioner asserts that the arresting officers actual knowledge of the facts underlying her claim may be imputed to respondents and that they will not be prejudiced by her late filing as a result. (Id). She also claims that her counsel s inability to contact her constitutes a reasonable excuse for her delay and that, in any event, failure to provide a reasonable excuse is not fatal to her application. (Id.). In opposition, City contends that petitioner offers no proof of her arrest and detention, and thus, that she has established neither actual knowledge nor the absence of prejudice, and it denies that her counsel s inability to contact her excuses her delay. (Affirmation of John Orcutt, ACC, in Opposition, dated Nov. 10,2011). As the charges against petitioner are still pending, it also claims that she should be directed to remove her malicious prosecution claim from her notice of claim should her motion be granted. (Id.). At oral argument, petitioner s malicious prosecution claim was dismissed on consent 2 [* 4] without prejudice. ANALYSIS Pursuant to GML $8 50-e(l)(a) and 50-i, in order to commence a tort action against a municipality or a municipal agency, a claimant must serve it with a notice of claim within 90 days of the date on which the claim arose. The court may extend the time to file a notice of claim, and in deciding whether to grant the extension, it must consider, inter alia, whether the municipality or agency acquired actual knowledge of the essential facts constituting the claim within the 90-day deadline or a reasonable time thereafter, whether the delay in serving the notice of claim substantially prejudiced the municipality or agency in its ability to maintain a defense, and whether the claimant has a reasonable excuse for the delay. (GML 9 50-e[5]; Perez ex rel. Torres v New York City Health & Hosps. Corp., 81 AD3d 448,448 [ lBt Dept 201 11). In considering these factors, none is dispositive (Pearson ex re1 Pearson v New York City Health & Hosps. C o p , 43 AD3d 92,93 [lut Dept 20071, afd 10 NY3d 852 [ZOOS]), and given their flexibility, the court may take into account other relevant facts and circumstances (Washington v CityofNew Yurk, 72NY2d 881, 883 [1988]). A. Actual knowledgg A claimant bears the burden of demonstrating the public entity s actual knowledge of the essential facts underlying her claim. (Walker v New York City Tr. Auth., 266 AD2d 54, 54-55 [lSt Dept 19991). A public entity has such knowledge when it has knowledge of the facts underlying the theory on which liability is predicated. (Matter oJGrande v City o New York,48 AD3d 565, f 566 [2d Dept 20081). Generally, the facts are those which demonstrate a connection between the injury or event and any wrongdoing on the part of the entity. (Matter of Werner v Nyack Union 3 [* 5] Free School Dist., 76 AD3d 1026, 1027 [2d Dept 20101). The entity must have notice or knowledge of the specific claim and not merely general knowledge that a wrong has been committed. (Mutter ofDevivo v Town of Camel, 68 AD3d 991,992 [2d Dept 20091; Mutter of Wright v City ofNew York 66 AD3d 1037, 1038 [2d Dept 20091; Arias v New York City Health & Hosps. Corp., 50 AD3d 830, 832-833 [2d Dept 20081, lv denied 12 NY3d 738 [2009]; Pappalardo v City of New York, 2 AD3d 699,700 [2d Dept 20031; Chattergoon v New York Ct iy Hous.Auth., 161 AD2d 141, 142 [lgt Dept 19901, lv denied 76 NY2d 875 [1990]). Actual knowledge may be imputed to a municipality where its employees engaged in the iy conduct giving rise to a claim. (Gibbs v Ct ofNew York, 22 AD3d 717,719-20 [2d Dept 20051; Picciuno v Nassau County Civil Sew. Comm 'n,290 AD2d 164, 174 [2d Dept 20011; Ayala v CifyofNew York, 189 AD2d 632,633 [l" Dept 19931). Here, petitioner's claims arise from the actions of New York City Police Department officers in arresting and detaining her. Absent evidence demonstrating that petitioner was not arrested or detained on July 15,201 1, petitioner's affidavit is sufficient to show that she was, and actual knowledge may be imputed to City on this basis. (See Matter ofAnsong v Ct ofNew iy York, 308 AD2d 333 [Iat Dept 20031 [actual knowledge of assault claim imputed to City where Ct police oficers allegedly assaulted petitioner]; Nunez v City ofNew York, 307 AD2d 2 18 [ 1Bt iy Dept 20031 [actual knowledge of false arrest and malicious prosecution claims imputed to City, as Police Department possessed all essential facts]; Justinian0 v New York Ct Hous.Auth. iy Police, 191 AD2d 252 [lSt Dept 19931 [where police officers in City's employ made arrest and initiated investigation, actual knowledge of false arrest and malicious prosecution claims imputed to City]). 4 [* 6] Moreover, as petitioner served City with her notice of claim only five days after the expiration of the 90-day period, it obtained actual knowledge of the facts underlying her claim at that time, as well. (See Erichson v City of Poughkeepsie Police Dept,. 66 AD3d 820 [2d Dept 20091 [notice of claim served without leave six days after deadline provided agency with actual knowledge]; see also Matter of Gershanow v Town of Clarhon, 88 AD3d 879 [2d Dept 201 11 [notice of claim served without leave one month after deadline provided agency with actual knowledge]; Bertone Commissioning v Ct of New York,27 AD3d 222 [I Dept 2006 ] [notice iy of claim served without leave less than two months after expiration of 90-day period provided agency with actual knowledge]; Matter o Harrison v New York City Hous. Auth., 188 AD2d 367 f [1 Dept 19921 [agency obtained actual knowledge from notice of claim received one month after expiration of 90-day period]). 8. Preiudicg As petitioner has established that City obtained actual knowledge of the facts underlying her claims, she has also demonstrated the absence of prejudice. (See Ansong, 308 AD2d 333 [no prejudice where Police Department acquired actual knowledge through its employees involvement and continued to investigate underlying crime]; Nunez, 307 AD2d 3 18 [same]). c. Reason&& e x c w le As petitioner established both actual knowledge and the absence of prejudice, and as the lack of a reasonable excuse is not, standing by itself, sufficient to deny an application for leave to serve and file a late notice of claim (Ansong, 308 AD2d 333), whether her late filing is excused by her counsel s inability to contact her within the 90-day period need not be determined, 5 [* 7] IV. CONCLUSION Accordingly, it is hereby ORDERED, that petitioner's motion for an order deeming her notice of claim timely served, nuncpro tunc, is granted. ENTER: DATED: February 17,20 12 New York, New York fEB 1 7 2012 NEW YCRK COlJNTY CLERKS OFFICE: 6

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