Matter of Rothenberg v City of New York

[*1] Matter of Rothenberg v City of New York 2007 NY Slip Op 51766(U) [16 Misc 3d 1140(A)] Decided on July 18, 2007 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2007
Supreme Court, Kings County

In the Matter of the Application of, Joel M. Rothenberg and Marjorie Rothenberg, Petitioners, for leave to serve a late notice of claim the

against

City of New York, Defendant,



17207/07

Sylvia O. Hinds-Radix, J.

Upon the foregoing papers, plaintiffs Joel Rothenberg and Marjorie Rothenberg move for an order, granting them leave to serve and file a late Notice of Claim nunc pro tunc upon defendant City of New York ("the City"), pursuant to General Municipal Law § 50-e ("§ 50-e").

Defendant, the City, opposes the above motion for the extension of time to file a late Notice of Claim.

This is an action to recover damages for personal injuries sustained by plaintiff Joel Rothenberg on November 30, 2006, while he was in a vehicle stopped at a red light at the intersection of Atlantic Avenue and Ralph Avenue in Brooklyn, New York. Plaintiff alleges that while he was stopped, his vehicle was struck in the rear by an unmarked vehicle. Officer Patrick D. Lancer ("Officer Lancer"), an off-duty officer on his way to work, testified to being the driver of this unmarked vehicle and causing the collision. In his deposition, Officer Lancer claimed that prior to and at the time of the collision, he was attempting to determine whether another vehicle on the road, a particularly modified Nissan Maxima, was the same vehicle that had been involved in a crime that Officer Lancer had witnessed approximately two weeks earlier.[FN1] Officer Lancer also testified that he had the Maxima under surveillance for several blocks prior to the accident, and would have continued to pursue the vehicle had the accident not occurred. Officer Lancer testified that although he was on his way to work, he was operating his vehicle and carrying out surveillance duties within the scope of his employment with the New York City [*2]Police Department.

As a result of the collision, plaintiff Joel Rothenberg lost consciousness; emergency personnel removed him from his vehicle, placed him in an ambulance, and transported him to Kings County Hospital.

Two other New York City police officers investigated the accident, and prepared an MV-104AN police report. Officer Lancer testified that he reported the accident to his platoon sergeant, his lieutenant, his commanding officer, and his partner. In his deposition, Officer Lancer also stated that although he was dressed in plain clothes, he identified himself to the investigating officers as a police officer. However, the investigating officers did not indicate on their report that Officer Lancer was indeed a police officer, and neither the investigating officers nor Officer Lancer advised the petitioners of this information. At the time of the accident, plaintiffs had no knowledge that Officer Lancer was a police officer; additionally, plaintiffs had no knowledge of what Officer Lancer was doing immediately prior to the collision, nor that he believed he was acting within the scope of his duties as a law enforcement officer.

Plaintiffs filed a personal injury lawsuit against Officer Lancer on December 27, 2006, and did not include the City as a co-defendant in this action. Plaintiffs did not see Officer Lancer until May 7, 2007, when he appeared for a scheduled deposition [FN2] as a defendant for the personal injury action. At this deposition, plaintiffs learned for the first time that Officer Lancer was a police officer; upon learning this information, plaintiffs immediately prepared and served a Notice of Claim on the City on May 8, 2007.

In support of their motion, plaintiffs maintain that they had a reasonable excuse for filing a late Notice of Claim. Plaintiffs argue that there was no basis to know or suspect that Officer Lancer, who was in plain clothes and driving an unmarked car, was a police officer or that he was acting within the scope of this employment when the collision occurred. Additionally, plaintiffs contend that neither Officer Lancer nor the investigating officers informed plaintiffs of Officer Lancer's employment with the police department. Plaintiffs assert that they acted with the utmost diligence, as they prepared and served their Notice of Claim upon the City on May 8, 2007, within 24 hours of their discovering Officer's Lancer's employment with the New York City Police Department. Even though this date was after the statutory 90 days post-claim during which regular Notice of Claims are filed, plaintiffs contend that there are still many months remaining on the year-and-90-day statute of limitations for the original lawsuit. Moreover, because there was no delay in commencing the action and gathering statements of the parties involved, plaintiffs contends that the City would not be prejudiced by the relatively short 69-day delay in service of the Notice of Claim.

Furthermore, plaintiffs maintain that the City itself had actual knowledge of the essential facts of the case. As stated by Officer Lancer in his deposition, not only did he give detailed information to the investigating officers for their report, he also informed his sergeant, lieutenant, commanding officer, and partner of the accident.

The City responds by stating it had no actual knowledge of the facts of the claim during the 90 day time window, holding that even if a police officer or department knows of an accident, it does not mean that the municipality itself has actual knowledge itself regarding the [*3]essential facts of a claim. In addition, the City argues that it would be prejudiced by the late filing of a Notice of Claim, as it would have to defend a case and conduct an investigation, including interview witnesses, over six months after the accident occurred.

General Municipal Law § 50-e(5) provides that for the commencement of an action against a municipality, a Notice of Claim shall be served upon the municipality within 90 days after the claim arises. In assessing a petition to serve a late Notice of Claim, a court will look to several factors found in § 50-e(5), including: 1) whether petitioner had a sufficient excuse for the delay; 2) whether the municipality had actual notice of the claim within the 90 day period; and 3) whether the municipality is prejudiced by the untimely Notice of Claim. Dube v. City of New York, 158 AD2d 457 (2d Dept. 1990); Chattergoon v. New York City Housing Authority, 161 AD2d 141 (1st Dept. 1990), aff'd, 78 NY2d 958 (1991); Munnerlyn v. City of New York, 203 AD2d 437 (2d Dept. 1984). As long as the extension would not exceed the year-and-90 day time limited for the commencement of an action, the court has broad discretion to grant an extension of time to file. See Birnbaum v. City of New York, 2 Misc 3d 1010(A).

Here, it is first necessary for the court to determine whether Officer Lancer was acting within the scope of his employment as a police officer of New York City, whereby liability could be imposed on the City on the principle of respondeat superior. Rule 175 of the Police Regulations provides that: "A member of the force shall be fit and subject to duty at all times except when on sick report." See Collins v. City of New York, 7 NY2d 822, 822 (NY 1959). As Officer Lancer testified, while he was technically off-duty at the time of the accident, his surveillance actions were done with professional motivation and in furtherance of his employer's interest. Case law shows that defendant can be "liable under traditional concepts of respondeat superior for the actions of officers . . . who attempt to effect arrests while off-duty." See e.g. Parris v. New York Housing Authority, 121 AD2d 436 (2d Dept. 1986); See also Frazier v. State of New York, 64 NY2d 802 (NY 1985). Here, Officer Lancer testifies that he was performing surveillance when the accident occurred, and would have continued the surveillance had the accident not occurred. This court finds, therefore, that Officer Lancer was within the scope of his duty as a police officer when his vehicle struck the plaintiff's car.

In the instant case, petitioners had a sufficient excuse for the delay. At no point were they given information as to the identity of Officer Lancer as a police officer, nor would it seem reasonable to suspect a person driving an unmarked vehicle, wearing civilian clothes, to be a law enforcement officer. Here, petitioners' delay in filing a Notice of Claim was a relatively brief period, merely 69 days after the expiration of the statutory 90 day time period for such filings.

The City has acquired essential facts concerning the accident and plaintiffs' claim. The City's Police Department immediately investigated the accident, gathered witness information that it deemed appropriate to collect, and generated a report. This report, in addition to other officers (some of whom being higher ranking officers) having notice of the collision, is sufficient for the City to have had actual knowledge of the accident and to have reported it to the municipality as a potential defendant.

The City attempts to support its position by stating that generally, knowledge of essential facts of a claim by a police officer or police department cannot be considered actual knowledge by the public corporation itself. See Caselli v. City of New York, 105 AD2d 251, 255 (2d Dept. 1984). However, the specific facts of the instant case show that it is indeed an exception to this general position. For example, in Flynn v. City of Long Beach (94 AD2d 713), the court held that the extensive investigation undertaken by the police department, a city agency, shortly after [*4]the accident . . . provided the City with actual notice for the purpose of granting leave to serve a late Notice of Claim. In Trakis v. City of New York (92 AD2d 569), the court found that the City had acquired actual knowledge of plaintiff's claim by reason of police reports and emergency clinic reports filed in connection with his accident and treatment. Here, the investigating officers noted the essential facts in their report, and were aware that emergency medical reports would be made, as plaintiff was taken from the scene to Kings County Hospital. Lastly, the instant case is comparable to King v. City of New York (90 AD2d 714), where the Appellate Division, First Department, concluded that because several agents of the municipality had actual notice of the facts constituting plaintiff's claim within hours after its occurrence, plaintiff's late Notice of Claim should have been deemed timely served.

Consequently, since the late Notice was filed only 69 days after the initial 90 day period, the court finds that there is no danger that changed conditions would prevent an accurate reconstruction of the circumstances existing at the time the incident occurred. Furthermore, the court finds that petitioners have provided the City with the essential facts constituting the claim within a reasonable time period after the expiration of the 90 day deadline. Therefore, allowing plaintiffs leave to serve and file a late Notice of Claim nunc pro tunc would not circumvent the purpose of the statute, which is to give the City an opportunity to investigate the claim while information is still readily available. See Caselli v. City of New York, 105 AD2d at 252. In the instant case, the City would not be prejudiced by receiving this late Notice of Claim by plaintiffs.

Accordingly, plaintiffs' motion for leave to file a Notice of Claim nunc pro tunc is granted.

The above constitutes the decision and order of this court.

ENTER

J. S. C. Footnotes

Footnote 1: Officer Lancer testified that two weeks prior, he and his partner were on foot, investigating a domestic violence complaint. At the time, Officer Lancer observed a specifically modified Nissan Maxima nearly run down his partner and flee the scene.

Footnote 2: After receiving Officer Lancer's Answer to the Complaint, plaintiffs filed an RJI on January 31, 2007 for a preliminary discovery conference. The court held this conference on February 27, 2007 and directed Officer Lancer to appear for a deposition on May 7, 2007.