Charles v City of New York

[*1] Charles v City of New York 2008 NY Slip Op 51719(U) [20 Misc 3d 1133(A)] Decided on August 13, 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 As corrected in part through September 2, 2008; it will not be published in the printed Official Reports.

Decided on August 13, 2008
Supreme Court, Kings County

Stephen Charles, Plaintiff,

against

City of New York, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and KINGS COUNTY MEDICAL CENTER, , Defendants.



42949/07



The petitioner is represented by the Law Offices of Micheal S. Lamonsoff, by Micheal Fitzpatrick, Esq., of counsel, the respondents City of New York and New York City Police Department are represented by Michael A. Carodozo, Esq., Corporation Counsel fo the City of New York, by Mark Galen Toews, Esq., of counsel.

Robert J. Miller, J.

Petitioner Stephen Charles ("Charles") 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 and the New York City Police Department ("the City") for claims of false imprisonment, false arrest, assault, battery, violations of civil rights, malicious prosecution, personal injuries, physical and mental pain and suffering allegedly caused by the police officers during his arrest, and negligent hiring, retention and training of the police officers. The petition to file a late Notice of Claim was also brought against the New York City Health and Hospitals Corporation and was granted on consent of both parties pursuant to an order of the Court on April 2, 2008.

The alleged incidents arose from Charles having been shot in his two knees on June 9, 2007, at 1335 New York Avenue, Brooklyn, by an unknown gunman. After being shot, two officers from the 67th precinct responded to the address and it is alleged that they falsely arrested, imprisoned and detained Charles. The petitioner was taken to Kings County Hospital and held in the prison ward. Charles was discharged from the hospital on June 13, 2007, and taken to the prison at Rikers Island Prison Complex, in East Elmhurst, New York. It is also alleged that the police officers delayed his treatment and did not listen to personnel of the hospital regarding the manner in which the handcuffs were used on the injured prisoner.

Petitioner was required to file a timely Notice of Claim pursuant to General Municipal Law §50-e arising from the June 9, 2007 incident by September 7, 2007. [*2]

Charles consulted his attorney on October 23, 2007, and the instant application to serve a late Notice of Claim was made on November 23, 2007, seventy-eight (78) days after the GML §50-e period had expired and more than five (5) months after the incident.

The claim of false imprisonment does not begin to accrue until the confinement is terminated. (Collins v McMillan 102 AD2d 860 [2d Dept 1984].) Here, the record provided to the Court, and the affidavit of Charles do not give any information as to when the petitioner was released from custody and therefore the Court cannot determine the dates of accrual of the false imprisonment claim and whether it would be timely.

Service of a Notice of Claim is a condition precedent to the commencement of a tort action against the municipality. (Clayton Industries, Inc. V City of Newburgh, 17 AD3d 309,[ 2d Dept 2005]).

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 [2d Dept 2007], Rabnar v City of Yonkers, 290 AD2d 428 [2d Dept

2002], Chrisoforatos v City of New York, 285 AD2d 622 [2d Dept 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2d Dept 1998]).

The Court first looks to whether there was a reasonable excuse for filing a late Notice of Claim. The injuries' petitioner received were serious in that the petitioner sought treatment of pain throughout the ninety (90) day period following his arrest. According to the medical records, the petitioner received medical treatment on the date of incident, July 20, August 3, September 14 of 2007. Such injuries are a reasonable excuse for filing a late notice.

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 [*3]County of Nassau 18 AD3d 520 [2d Dept., 2005], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept., 1993].) Consequently, the Court will next consider whether the City received actual notice of the facts constituting the claims.

General Municipal Law § 50-e states in pertinent part that;

Upon application, the court, in its discretion, may extend

the time to serve a notice of claim specified in paragraph

(a) of subdivision one. The extension shall not exceed the

time limited for the commencement of an action by the

claimant against the public corporation. In determining

whether to grant the extension, the court shall consider,

in particular, whether the public corporation or its attorney

or its insurance carrier acquired actual knowledge of the

essential facts constituting the claim within the time

specified in subdivision one or within a reasonable

time thereafter.

Since, the application for a late Notice of Claim was made seventy-eight (78) days after the GML §50-e 90 period had expired, it is necessary to look at whether the City received actual notice of the essential facts within the 90 days or within a "reasonable time thereafter".

The Court in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], stated that:

"In order to have actual knowledge of the

essential facts constituting the claim, the

public corporation must have knowledge

of the facts that underlie the legal theory

or theories on which liability is predicated

in the notice of claim; the public corporation

need not have specific notice of the theory

or theories themselves." (emphasis added)

In order to determine whether the City received actual knowledge of the facts alleged in the proposed Notice of Claim, the Court reviews any documentation or evidence that evinces what could have put the City on notice of the elements alleged in [*4]the claims. The affidavit by Charles is conclusory and provides the Court with no details to consider as to whether the City had notice of the conduct alleged by the officers.

Petitioner in his initial petition to the Court brought by Order to Show Cause, requested that the Court order the City to produce documentation relating to the petitioners arrest and hospitalization. Petitioner did not explain why he had difficulty obtaining his

own hospital and arrest records, records which the petitioner should have been able to obtain absent a court order. The Court exercised its discretion at the first hearing of the petition and directed the New York City Health and Hospital Corporation who was in possession of the petitioner's medical records to turn over the records to the petitioner. The Court also directed the City to provide petitioner with "arrest/ booking records". The Court further directed petitioner, after receipt of the records, to submit papers with regard to the issue of "actual notice". Thereafter, the Court received an additional submission by petitioner. However the submission fails to make a showing that the City was on notice of the claims within the ninety (90) day period from the incident.

The mere assertion by petitioner that the "numerous documents generated by police officers, corrections officers and hospital personnel" provide notice to the municipality and constitute actual knowledge of the facts within the ninety (90) days, is not persuasive. If that were the case, in every action where there is an allegation of misconduct against police officers, the need to have a Notice of Claim filed would be eviscerated . Additionally, in Caselli v City of New York , 105 AD2d 251 [2d Dept 1984] the court when discussing the information contained in police reports 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. [*5]

Therefore, the Court will not speculate what those records might demonstrate. The Court afforded petitioner every opportunity to submit documents establishing notice. Petitioner failed to do so.

After carefully examining the hospital records submitted by petitioner, it is clear that the medical records which document the petitioner's injuries are completely devoid of any facts which would put the City on notice of the theories asserted in the claims of assault, battery, false imprisonment, false arrest, physical or mental abuse by the police officers, or behavior which would give rise to the theory that the police officers were negligently hired, trained or supervised.

As to petitioner's claim of malicious prosecution, the claim accrues as of the date of the dismissal of any criminal charges brought against the petitioner. (Guzman v City of New York, 236 AD2d 444 [2d Dept 1997], Leung v City of New York, 216 AD2d 444 [1st Dept 1995].) Here, even though the Court adjourned the motion asking for the certificate of disposition of the criminal charges and held a phone conference to ask if the certificate of disposition was forthcoming, the petitioner did not provide any further information regarding the dismissal of the criminal charges. Therefore, the timeliness or lack thereof of the notice of claim for malicious prosecution cannot be detemined.

Lastly, the Court considered whether the City would be prejudiced by a 78 day delay in service of the late Notice of Claim. The Court of Appeals has recently observed that "proof that

the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [ 2006].) The petitioner has not demonstrated to the Court that the City received any knowledge of the essential facts underlying the asserted claims within the approximately five (5) months from the date of incident to the service of the petition. The Court finds that the City would be prejudiced.

Accordingly, the application to serve a late Notice of Claim is denied in its entirety. The Court notes that this decision does not affect plaintiff'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]).

The foregoing constitutes the decision, order and judgment of the Court.

_______________________ [*6]

Robert J. Miller

J.S.C.

August 13, 2008