Matter of Black v City of New York

[*1] Matter of Black v City of New York 2008 NY Slip Op 52118(U) [21 Misc 3d 1121(A)] Decided on October 27, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2008
Supreme Court, Kings County

In the Matter of the Claim of Daniel Black, Petitioner,

against

The City of New York, Respondent(s).



22480/08



The Petitioner is represented by the law firm of Stoll & Glickman, LLP by Leo Glickman, Esq., of counsel, the respondent the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Don H. Nguyen, Esq., of counsel.

Robert J. Miller, J.

In this case, the Court considers the question of whether the filing of a complaint by petitioner with the Civilian Complaint Review Board gives notice to the City of the facts of petitioner's claim.

Petitioner Daniel Black ("Black") moves pursuant to General Municipal Law §50-e, for an order granting him leave to file a late Notice of Claim against the City of New York ("City") arising out of his claims of false arrest and assault by New York City police officers. The

proposed Notice of Claim describes the incident which gives rise to the claim as follows:Claimant was falsely arrested and imprisoned

in violation of his rights. Claimant seeks damages

for deprivation of federal and state constitutional

and civil rights, violation of 42 U.S.C.

Sections 1983, the Fourth and Fourteen

Amendments to the United States Constitution.

***************

The initial police misconduct occurred at

approximately 8:00 pm on July 3, 2007

in the vicinity of Rogers Avenue and [*2]

Avenue D in Brooklyn, NY. Claimant

was unlawfully searched, falsely arrested

and assaulted by New York City police

officers.

Petitioner was required to file a timely Notice of Claim pursuant to General Municipal Law (GML) §50-e arising from an alleged incident on July 3, 2007 by October 1, 2007. Black filed an order to show cause seeking leave to file a late Notice of Claim on August 12, 2008, over one (1) year and twelve days (12) after the case of action accrued and over ten (10) months after the ninety (90) day statutory period expired.

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.

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(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]).

Petitioner's application fails to set forth any facts or details which would demonstrate a reasonable excuse as to why petitioner failed to file a timely Notice of Claim. 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, 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]).

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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 [*3]officers because they were directly involved with the claim of false arrest and assault. However, in Caselli v City of New York , 105 AD2d 251 [2d Dept 1994], the Court 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

(see, e.g., Williams v. Town of Irondequoit,

59 AD2d 1049, 1050)...)".

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 an 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 case to meet the Caselli test.

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The Court will review the holdings in 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], Matter of Reisse v County of Nassau , 141 AD2d 649 [2d Dept 1988], which are cited by petitioner for the proposition that, where there is a claim of police misconduct and assault by the arresting police officers, the City is imputed with the essential facts of the case as they provide the Court with the "other factor" contemplated by the Caselli court.

However, this Court does not accept the premise of petitioner's argument which is that in

every case where the officer is the subject of a civil complaint arising out of an alleged assault or false arrest that it was the intention of the Appellate Division, Second Department, to impute the City with actual knowledge of the essential facts through the arresting police officer. If this were the law in the Second Department, the logical outcome would be to eviscerate the requirement that a Notice of Claim be timely filed in any civil complaint brought against the City arising out of an arrest. Moreover, there would be no reason not to extend this rationale to other City workers, i.e why not impute the knowledge of a bus driver or fireman involved in an incident in a case which alleges misconduct to the City to establish notice within the ninety (90) day period.

Petitioner relies primarily on Ragland v New York City Housing Authority, 201 AD2d 7

[2nd Dept 1994]. In Ragland, the Court observed:

The Supreme Court in the case before us

relied on this general principle and

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the foregoing cases in holding: "Where, as here,

members of the municipality's police department

participate in the acts giving rise to the claim, and

reports and complaints have been filed by the

police, the municipality will be held to have actual

notice of the essential facts of the claim

[citations omitted]" (emphasis added). Since the

reason for the early filing of a notice of claim is

to permit the public corporation to conduct a prompt

investigation into facts and circumstances giving

rise to the claim, the existence of reports in its own

files concerning those facts and circumstances is the

functional equivalent of an investigation. In the normal

course, it would follow that the public corporation, in

this case the Authority, would suffer no prejudice.

In Ragland, plaintiff was arraigned in criminal court, held in jail for eleven (11) days because he could not make bail with the charges being dismissed three (3) months later. The Criminal Court, District Attorney and police records were sealed pursuant to CPL § 160.50. The Court permitted the late filing of the Notice of Claim on the condition that plaintiff waive confidentiality and allow the unsealing of these records. The Court found that the "existence of reports in its own files... is the functional equivalent of an investigation" that would have been conducted if a timely Notice of Claim had been filed. Here, other than the records in the possession of the Civilian Compliant Board (CCRB), petitioner does not claim or provide the Court with any records that petitioner contends are in the possession of the City which provide the City with the "functional equivalent of an investigation".

Petitioner also relies on three cases cited in Ragland. First, Tatum v City of New York,

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161AD2d 580 [2d Dept 1990], where the Court stated that "knowledge from police arrest

records and District Attorney investigations may under some circumstances be imputed to a municipality" (emphasis added). However, in Tatum as part of its analysis, the Court noted that the delay in filing of the Notice of Claim was "short", unlike this case where there is over a ten (10) month delay. Second, McKenna v City of New York , 154 AD2d 655 [2d Dept 1990] where the Court found that "a portion of the delay was justified" unlike the current case, where the Court has not been given any reason for the ten month delay. Finally, in Matter of Reisse v County of Nassau , 141 AD2d 649 [2d Dept 1988] where, unlike here, there was an "active investigation by the police department for nearly a month prior to the arrest of the petitioner".

Thus, Ragland and the cases relied upon by the Ragland Court all have facts which [*4]provided the Court with the other factors (in addition to the imputed knowledge of the arresting officers) to grant the petition allowing the filing of a late Notice of Claim.

The Court next considers petitioner's argument that because Black filed a complaint with the CCRB eight (8) days after his arrest which was later found by the CCRB to be "substantiated" that the City had knowledge of the essential facts of the claims within the ninety (90) days and that the filings of the complaint with the CCRB is another factor the Court may consider in doing its GML § 50-e analysis.

Essentially, petitioner argues that the filing of a CCRB complaint within ninety (90) days of the incident constitutes notice of the facts to the City of New York. Petitioner cites Ellison v New York City Housing Authority , 197 AD2d 481 [2d Dept 1993] in support. However, in Ellison, the petition to file a late notice was made approximately two weeks after the (90)

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ninety day period had expired. Moreover, in Ellison, the late notice was sought to be served against the New York City Housing Authority. A timely Notice of Claim had been filed against the New York City Police Department and it was determined that the New York Housing Authority police officers were involved in the same incident as the New York City Police Department officers. Clearly in Ellison there were "other factors" in addition to the complaint filed with the CCRB.

Furthermore, the Court is unwilling to extend the Ellison holding to require that in every case where the court is faced with an application to file a late Notice of Claim in a police misconduct case and a complaint has been filed with the CCRB, that the City will be imputed with receiving knowledge of the essential facts of the claim.

The City argues that it cannot have acquired the essential facts of the case through the CCRB, as the CCRB is not an extension of the New York City Police Department. Chapter 18-A of the New York City Charter, §440 section (a) provides, in pertinent part that:

"An independent civilian complaint review board

is hereby established as a body comprised solely of

members of the public with the authority to investigate

allegations of police misconduct as provided in this

section."

Section (b)(1) provides that the "civilian complaint review board shall consist of thirteen members of the public appointed by the mayor." Section (2) states that "No member of the board shall hold any other public office or employment".

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Under the plain language of the statute, the Board is an independent body comprised of [*5]members of the public who do not hold public office or employment. The CCRB's Mission and Values Statement sets forth the CCRB objectives of (a) encouraging all parties involved in a complaint to come forward and present information they may have, (b) making objective determinations of the merits of each case, (c) making findings to show that misconduct occurred, and (d) respecting the rights of both the complainant and subject officers.

There is no basis to impute the facts and knowledge obtained by an independent City agency to the City . To do so would undermine the very purpose of the CCRB, which is to conduct an inquiry separate, apart and independent of the City bureaucracy.

Moreover, in Camilleri v County of Suffolk, 190 AD2d 669 [2d Dept 1993], the Court held:

... any knowledge of the Suffolk County Police

Department,obtained through an interview of

the petitioner by it's department of Internal

Affairs..."cannot be considered actual knowledge

of the public corporation itself regarding the essential

facts of a claim (Casselli v City of New York, 105

AD2d 251, 255 CF., Flynn v City of Long Beach,

94 AS2d 713."

If an interview of petitioner with the Internal Affairs department of the Police Department that is an extension of a municipality is not considered to be "actual knowledge" of

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the essential facts of the claim by a municipality, then the investigation by the CCRB, an independent agency of the City, would not be imputed to the City.

As the Court in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008] noted when discussing the changes made to the General Municipal Law to allow more judicial flexibility in section 50-e cases;

"The memorandum in support of the Assembly

Bill that formed the basis of the 1976 amendment

stated that its rationale was to "give a more equitable

balance by breathing greater flexibility into section

50-e without defeating its basic purpose" (Mem. of

Assembly Rules Comm., Bill Jacket, L. 1976, ch. 745 at 6)."

Here, the Court will apply that equitable balancing by looking next to whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. Here the record is devoid of any facts or documents which demonstrate the City had knowledge of the claim within the ninety (90) day period. Therefore, a ten (10) month delay in the filing of the late [*6]notice is prejudicial, and the Court finds that the petitioner has failed to demonstrate that the City will not be prejudiced. (Shapiro v Town of Clarkstown, 238 AD2d 498 [2d Dept 1997], Munnerlyn v City of New York, 203 AD2d 437 [2d Dept 1994]).

The Court holds that where, as here, petitioner without offering any excuse for his delay, seeks leave to file a late Notice of Claim one (1) year and twelve (12) days after the incident occurred and ten (10) months after the ninety (90) day statutory period expired and where, as, here, petitioner has failed to demonstrate lack of prejudice to the City, petitioner may not rely on the filing of a complaint with the CCRB to impute knowledge to the City of the facts of the

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claim within the ninety (90) day period.

Accordingly, the application to serve a late Notice of Claim is denied. The Court notes that this decision does not effect 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 and order of the Court.

_______________________

Robert J. Miller

J.S.C.

October 27, 2008

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