Blanding v City of New York

[*1] Blanding v City of New York 2008 NY Slip Op 50455(U) [18 Misc 3d 1146(A)] Decided on March 10, 2008 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 13, 2008; it will not be published in the printed Official Reports.

Decided on March 10, 2008
Supreme Court, Kings County

Cynthia Blanding, Plaintiff,

against

The City of New York and The New York City Police Department, Defendants.



2248/08

Robert J. Miller, J.

Petitioner Cynthia Blanding ("Blanding") moves by order to show cause dated January 28, 2008 pursuant to General Municipal Law §50-e, for an order granting her leave to file a late notice of claim against the City of New York and the New York City Police Department (collectively the "City") to include causes of action for false arrest, false imprisonment, malicious prosecution, abuse of process, assault and battery, aggravated harassment, harassment, intentional tort, emotional distress and loss of services.

The instant case arises out of an arrest of Blanding on July 20, 2006 at the 81st precinct for alleged violations of Penal Law §§220.03, 220.50, 260.10 and 221.05. Blanding asserts she was at the precinct to find out information regarding an arrest of her children, and when she explained that she wanted to see her children, it is alleged that a sergeant in the narcotics squad "shoved, handcuffed, falsely arrested and falsely imprisoned" her, placing her in a cell with her daughter. Petitioner remained incarcerated at the 81st precinct for about eleven hours until she was arraigned and released on July 21, 2006. Petitioner made court appearances on the criminal charges until [*2]August 28, 2007 when all the charges were dismissed, before Judge T. Serita, based on the lapse of speedy trial provisions.

Petitioner was required to file a timely notice of claim arising from the July 20-21, 2006 incidents relating to the allegations of false arrest, assault, battery, aggravated harassment, harassment, intentional tort and false imprisonment by October 18, 2006 and October 19th 2006, 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], Jackson v Police Dept. of the City of New York, 119 AD2d 551 [2nd Dept 1990]). Further, the petitioner seeks to file a late notice of claim after the statute of limitations has run and in non compliance with GML § 50-i(c) which requires that:

1....c. the action or special proceeding shall be commenced within one year

and ninety days after the happening of the event upon which the claim is

based; except that wrongful death actions shall be commenced within two

years after the happening of the death.

Once the statute of limitations has expired, it is well-settled that the Court is without jurisdiction to permit plaintiff to comply with the notice of claim requirement of GML §50-e. ( Freidman v City of New York, 19 AD3d 542, [2nd Dept 2005], Maxwell v City of New York, 29 AD3d 540 [ 2nd Dept 2006], Elleman v Village of Rhinebeck, 27 AD3d 414 [2nd Dept 2006], Braun v County of Orange, 31 AD3d 593 [2nd Dept 2006].) Here, the statute of limitations expired on October 19, 2007.

Therefore, the application to file a late notice of claim for assault, battery, false arrest, false imprisonment, intentional tort, harassment and aggravated harassment is denied.

As to petitioner's other causes of action for abuse of process, malicious prosecution, "emotional distress" and loss of services, under GML §50-i, the Court can consider the application to file a late notice of claim as the period from which the statute of limitations runs, for these allegations, is the date of the dismissal of the criminal charges. The case was dismissed on August 28, 2007, five months before the instant application and approximately 70 days late. (Haynes v City of New York, 100 AD2d 572 [2nd Dept. 1984].)

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 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. [*3](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 fails to demonstrate any facts which could be considered as a reasonable excuse for delay in filing a notice of claim. Additionally, late retention of counsel alone is not an excuse for failure to serve a notice of claim, as there must be a satisfactory reason for why counsel was retained late. (Matter of Dube v City of New York, 158 AD2d 457 [2nd Dept., 1990], Winter v City of Geneva [4th Dept 1994].)

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], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept., 1993].) Consequently, the Court can consider whether the City received actual notice of the facts constituting the remaining claims for abuse of process, malicious prosecution, emotional distress and loss of services.

The City has received notice of the essential facts with respect to the claims for malicious prosecution and abuse of process because it had an ongoing criminal investigation and case pending against the petitioner, involving the same witnesses, circumstances, documents and reports, imputing the City with actual knowledge of the details surrounding the claim. (Pullum v The City of New York, 2007 WL 3070375, 2007 NY Slip Op. 33321(u), Hasmath v Cameb, 5 AD3dd 438 [2nd Dept 2004], Garcia v New York City Housing Authority, 195 AD2d 557 [2nd Dept 1993], Reisse v County of Nassau, 141 AD2d 649 [2nd Dept 1988].)

As it relates to the abuse of process and malicious prosecution claims, the Court finds that there is a lack of substantial prejudice because there has been a minimal delay in serving the notice of claim. (Molloy v City, 30 AD3d 603 [2nd Dept 2000], Morales v New York City Tran. Auth., 15 AD2d 580 [2nd Dept 2005].)

With respect to the claims for "emotional distress" and "loss of services," the Court finds that the City had not received notice of the facts regarding these claims. In fact, the proposed notice of claim does not even set forth any facts which would give notice of these claims.

Accordingly, the application to serve a late notice of claim for malicious prosecution and abuse of process is granted. In all other respects, the application is denied.

This constitutes the decision and order of the Court.

E N T E R : [*4]

_________________________________

Robert J. Miller

Justice