Gibson v City of New York

[*1] Gibson v City of New York 2009 NY Slip Op 52769(U) [27 Misc 3d 1231(A)] Decided on October 30, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, Bronx County

Dana Gibson, Plaintiff

against

City of New York, Defendant.



260089/2008



Plaintiff

Dana Gibson, Pro Se

For Defendant

Christopher Yapchanyk, Assistant Corporation Counsel

198 East 161st Street, Bronx, NY 10451

Lucy Billings, J.

Plaintiff commenced this action by filing his complaint February 13, 2008, claiming a false arrest September 22, 2003; malicious prosecution concluding March 22, 2004; a false arrest October 16, 2004; malicious prosecution concluding February 24, 2005; a false arrest February 16, 2005; and malicious prosecution concluding July 7, 2005. Defendant has moved to dismiss the action due to plaintiff's noncompliance with New York General Municipal Law § 50-i(1)(c), which requires actions against the City of New York to be commenced within one year and 90 days after the occurrence on which the action is based. C.P.L.R. § 3211(a)(5); Campbell v. City of New York, 4 NY3d 200, 203 (2005); Baez v. New York City Health & Hosps. Corp., 80 NY2d 571, 576 (1992); Kiernan v. Thompson, 73 NY2d 840, 842 (1988); Wollins v. New York City Bd. of Educ., 8 AD3d 30, 31 (1st Dep't 2004). On June 17, 2008, plaintiff cross-moved to join as defendants the Bronx County District Attorney Robert T. Johnson and six individual employees of the City of New York and to amend his complaint to allege their responsibility for the three false arrests and three malicious prosecutions. C.P.L.R. §§ 305(a), 1002(b), 1003, 3025(a) and (b).

After unsuccessful attempts to schedule a hearing on the motions and cross-motion at which plaintiff, who is unrepresented and incarcerated, would appear in person, the court grants defendant's motion to dismiss plaintiff's claims only to the limited extent set forth, C.P.L.R. § 3211(a)(5); NY Gen. Mun. Law § 50-i(1)(c), and otherwise denies defendant's motion, for the reasons explained below. 42 U.S.C. § 1983; C.P.L.R. §§ 208, 214(5). The court grants plaintiff's cross-motion to join the Bronx County District Attorney and five additional individuals as defendants and to amend his complaint as also set forth below, without opposition separate from defendant's initial motion to dismiss the original claims, and denies the remainder of plaintiff's cross-motion. C.P.L.R. §§ 1002(b), 1003, 3025(a) and (b); NY Gen. Mun. Law § 50-i(1)(c).

I.EXPIRATION OF THE STATUTE OF LIMITATIONS UNDER GENERAL [*2]MUNICIPAL LAW § 50-i(1)(c)

Plaintiff's claims for malicious prosecution accrued upon a disposition favorable to him. Bumbury v. City of New York, 62 AD3d 621 (1st Dep't 2009); Palmer v. State of New York, 57 AD3d 364 (1st Dep't 2008); Stampf v. Metropolitan Transp. Auth., 57 AD3d 222, 223 (1st Dep't 2008); Nunez v. City of New York, 307 NY2d 218, 219 (1st Dep't 2003). His most recent claim thus accrued July 7, 2005. Therefore the statute of limitations for the last occurrence plaintiff complains of, malicious prosecution concluding favorably to him July 7, 2005, expired Monday, October 6, 2006. NY Gen. Constr. Law § 25-a(1); Szabo v. XYZ, Two Way Radio Taxi Assn., 267 AD2d 134, 135 (1st Dep't 1999); Coling Ambulette Serv. v. Empire Ins. Co., 262 AD2d 187 (1st Dep't 1999).

II.TOLLING UNDER C.P.L.R. § 208

Plaintiff points out that in May 2007 he commenced a proceeding seeking to serve a late notice of claim regarding the incidents of false arrest and malicious prosecution of which he complains in this action, NY Gen Mun. Law § 50-e(5), and to toll the statute of limitations during the period of his mental disability ending April 16, 2007. C.P.L.R. § 208. In an order dated June 4, 2007, the court (Victor, J.) granted plaintiff's request to file a late notice of claim. That order did not extend or toll the statute of limitations for commencing this action, but only extended plaintiff's time to file the notice of claim despite the statute of limitations already having expired, based on plaintiff's unrebutted allegations that he previously was under a mental disability that would toll the limitations period. See Giannicos v. Bellvue Hosp. Med. Ctr., 42 AD3d 379, 380 (1st Dep't 2007).

The court construes plaintiff's current opposition to defendant's motion, however, as relying on C.P.L.R. § 208 now to toll the statute of limitations so as to render his current action timely. If defendant considered that the court exceeded its authority in permitting plaintiff's late notice of claim, defendant's remedy was to appeal Justice Victor's June 2007 order. Having permitted the notice of claim, the court now is confronted directly and only with whether the action is timely due to tolling.

Plaintiff's affidavit sworn to May 1, 2007, presented in opposition to defendant's motion to dismiss his complaint, specifically attests that, pending all three criminal prosecutions of which he complains, he was held in . . . Kings County Hospital Psychiatry Department and Bellevue Hospital Psychiatry Department.

Due to my hospitalization in the Psychiatry Departments of Kings County Hospital and Bellevue Hospital where I was heavily medicated and treated for depression, I was unable to serve the City of New York . . . . Moreover, while in the care and custody of the New York City Department of Correctional Services . . . I was under the care of mental health professionals who heavily sedated me with medication do [sic] to my state of depression. . . . [A]bout April 16, 2007 I was released and cleared of all mental health services . . . .

Aff. in Opp'n to Def.'s Mot. to Dismiss, Ex. A at 4-5 ¶¶ 4-5. These sworn statements remain unrebutted.

Thus, with respect to the charges underlying plaintiff's second claimed false arrest October 16, 2004, his affidavit indicates he remained in a hospital Psychiatry Department pending the dismissal of those charges February 24, 2005. Yet his complaint alleges a third false arrest eight days earlier, February 16, 2005. Although plaintiff does not explain the circumstances of his arrest February 16, 2005, it is nonetheless plausible that he was arrested the third time while still hospitalized.

Nor does plaintiff explain his status between July 7, 2005, when his third claimed malicious prosecution terminated, and when he was "released" from mental health services about April 16, 2007. Id. at 5 ¶ 5. He does not specify whether after July 7, 2005, he was (1) [*3]voluntarily or involuntarily hospitalized independent of the prior pending criminal action and (2) continued to be "heavily sedated" as he was "while in the care and custody of the New York City Department of Correctional Services." Id.

This lack of explanation raises a question whether the continued mental health services plaintiff received until April 2007 continued to disable him from commencing this action, "because of an over-all inability to function in society," as he more persuasively attests for periods that the criminal prosecutions continued. Giannicos v. Bellevue Hosp. Med. Ctr., 42 AD3d at 380; Schulman v. Jacobowitz, 19 AD3d 574, 577 (2d Dep't 2005). See C.P.L.R. § 208; Jessamy v. Parkmed Assoc., 306 AD2d 34, 35 (1st Dep't 2003). At this juncture, however, the court must resolve these questions in plaintiff's favor and may not consider his affidavit's lack of persuasiveness, as long as the affidavit raises a plausible inference that he continued to be treated for a mental condition that disabled him from commencing this action, and defendant has not shown otherwise. EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2007); Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998); Thompson v. Cooper, 24 AD3d 203, 205-206 (1st Dep't 2005); Pechco v. Gendelman, 20 AD3d 404, 407 (2d Dep't 2005). See Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 268 (1st Dep't 2005).

Had defendant offered any rebuttal, a hearing on whether plaintiff's alleged disability in fact fell within C.P.L.R. § 208's ambit might have been warranted, but defendant offers none, even in reply, other than defendant's opinion that Justice Victor's unappealed order permitting plaintiff's late notice of claim was erroneous. See C.P.L.R. § 3211(c); Schulman v. Jacobowitz, 19 AD3d at 576. Moreover, since the statute of limitations would have expired, at least for the claims requiring a notice of claim, had Justice Victor considered plaintiff no longer disabled between July 2005 and May 2007, Justice Victor implicitly already construed plaintiff's same allegations in his favor. Giannicos v. Bellvue Hosp. Med. Ctr., 42 AD3d at 380. See Felder v. Casey, 487 U.S. 131, 140 (1988); Pendleton v. City of New York, 44 AD3d 733, 738 (2d Dep't 2007); Rapoli v. Village of Red Hook, 41 AD3d 456, 457 (2d Dep't 2007).

Consequently, at this stage of the litigation, accepting plaintiff's unrebutted sworn statements as true in the context of defendant's motion to dismiss, the court affords plaintiff the inference from his affidavit that he was disabled by his mental condition and treatment from his first arrest September 22, 2003, to March 22, 2004, and from October 16, 2004, to April 16, 2007. EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d at 22; Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); Cron v. Hargro Fabrics, 91 NY2d at 366; Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 AD3d 815, 816 (2d Dep't 2008). These facts toll the statute of limitations for the same two periods. Thus, when plaintiff commenced this action February 13, 2008, six months and 24 days between March 22 and October 16, 2004, plus nine months and 28 days between April 16, 2007, and February 13, 2008, of the statute of limitations had expired. Affording him the benefit of C.P.L.R. § 208's tolling during the period of his disability, he commenced this action well more than one year and 90 days after that first arrest and the ensuing first prosecution, but only nine months and 28 days, well less than that limitations period, after the second arrest and prosecution. NY Gen. Mun. Law § 50-i(1)(c).

Plaintiff claims that each arrest and prosecution, however, including the first arrest September 22, 2003, and the first prosecution that concluded March 22, 2004, violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendant has not moved to dismiss these claims on grounds other than lateness. These claims against a local governmental defendant pursuant to 42 U.S.C. § 1983 are subject to a statute of limitations of three years, C.P.L.R. § 214(5), rather than a year and 90 days. NY Gen. Mun. Law § 50-i(1)(c); Owens v. Okure, 488 U.S. 235, 250 (1989); Legal Aid Socy. v. City of New York, 242 AD2d 423, 426 (1st Dep't 1997); Pendleton v. City of New York, 44 AD3d at 737; Rapoli v. Village of Red Hook, 41 AD3d at 457. See Concourse Nursing Home v. Perales, 219 AD2d 451, 453 (1st Dep't 1995); Palmer v. State of New York, 57 AD3d at 365. Affording plaintiff the same inferences and tolling as for the later false arrest and malicious prosecution claims, his claims that his arrest September 22, 2003, and prosecution concluding March 22, 2004, violated [*4]his federal constitutional rights remain timely.

III.JOINING ADDITIONAL DEFENDANTS AND AMENDING THE COMPLAINT

Another 125 days expired before plaintiff served his cross-motion to join additional defendants and amend his complaint June 17, 2008, and 145 total days before he filed his cross-motion with the proposed pleading July 7, 2008. See Gomez v. City of New York, 49 AD3d 473 (1st Dep't 2008); Long v. Sowande, 27 AD3d 247, 248 (1st Dep't 2006). This further period does not alter the timeliness of plaintiff's claims as analyzed above. See C.P.L.R. § 203(c) and (f); Raymond v. Melohn Props., Inc., 47 AD3d 504 (1st Dep't 2008); Donovan v. All-Weld Prods. Corp., 34 AD3d 257, 258 (1st Dep't 2006); Jessamy v. Parkmed Assoc., 306 AD2d 34; Mercer v. 203 E. 72nd St. Corp., 300 AD2d 105, 106 (1st Dep't 2002). Defendant does not oppose plaintiff's cross-motion, other than assuming that if the statute of limitations for the last occurrence plaintiff complains of, on July 7, 2005, expired before he filed the original complaint, then the statute of limitation expired for any claims against related defendants.

Since the court does not conclude, based on plaintiff's pleadings, amplified by his affidavits, that the statute of limitations in fact expired for all his claims and discerns no undue delay or prejudice to defendant that would bar the unopposed joinder and amendment, the court grants his cross-motion in large part. C.P.L.R. §§ 1002(b), 3025(b); Thompson v. Cooper, 24 AD3d at 205; Haggerty v. Everett Realty, 21 AD3d 268, 269 (1st Dep't 2005); Masterwear Corp. v. Bernard, 3 AD3d 305, 306 (1st Dep't 2004); Leff v. Benihana of Tokyo, 304 AD2d 350, 351 (1st Dep't 2003). The alleged acts and omissions by the new defendants are the same acts and omissions alleged in his original complaint and come as no surprise to the City and its employees, for whom the City is vicariously liable, and who constitute all the new defendants except the District Attorney, who obviously was involved in the prosecutions complained of. Fellner v. Morimoto, 52 AD3d 352, 353 (1st Dep't 2008); Donovan v. All-Weld Prods. Corp., 34 AD3d at 257-58. See Opiela v. May Indus. Corp., 10 AD3d 340, 341 (1st Dep't 2004); Mercer v. 203 E. 72nd St. Corp., 300 AD2d at 106; Tucker v. Lorieo, 291 AD2d 261, 262 (1st Dep't 2002). Moreover, since plaintiff sought to add the proposed defendants and claims against these defendants within 20 days after defendant's motion to dismiss served June 5, 2008, plaintiff may add these parties and claims without the court's permission. C.P.L.R. §§ 1003, 3025(a).

Because plaintiff's claims under New York law for a false arrest September 22, 2003, and malicious prosecution concluding March 22, 2004, are barred by even the most liberal application of the statute of limitations and tolling provisions, plaintiff may not amend his complaint to allege those claims against the added defendants Robert T. Johnson, James Fleming, and Joseph DePaolo. Levinson v. 390 W. End Assoc., L.L.C., 22 AD3d 397, 403 (1st Dep't 2005); Bergman v. Indemnity Ins. Co. of N. Am., 275 AD2d 675, 676 (1st Dep't 2000). See B.B.C.F.D., S.A. v. Bank Julius Baer & Co., Ltd., 62 AD3d 425, 426 (1st Dep't 2009); Raymond v. Melohn Props., Inc., 47 AD3d 504. The claims against these defendants suffer from the same fatal untimeliness as the original claims under state law relating to the arrest September 22, 2003, and prosecution concluding March 22, 2004. NY Gen. Mun. Law § 50-i(1)(c). See J. Doe No. 1 v. CBS Broadcasting Inc., 24 AD3d 215, 216 (1st Dep't 2005). He may amend his complaint to allege his federal constitutional claims against these three defendants relating to that arrest and prosecution. C.P.L.R. § 214(5); Owens v. Okure, 488 U.S. at 250; Legal Aid Socy. v. City of New York, 242 AD2d at 426; Pendleton v. City of New York, 44 AD3d at 737; Rapoli v. Village of Red Hook, 41 AD3d at 457.

Notwithstanding C.P.L.R. §§ 1003 and 3025(a), conservation of judicial resources mandates examination of the underlying merit to the joinder and related amendments. See Thompson v. Cooper, 24 AD3d at 205; Zaid Theatre Corp. v. Sona Realty C., 18 AD3d 352, 355 (1st Dep't 2005). Because plaintiff alleges no acts or omissions by Police Officer Green, the claims against him are "palpably insufficient" and provide no basis for adding him. Thompson v. Cooper, 24 AD3d at 205; Pasalic v. O'Sullivan, 294 AD2d 103, 104 (1st Dep't 2002); Tishman Constr. Corp. of NY v. City of New York, 280 AD2d 374, 377 (1st Dep't 2001). See Nathanson v. Tri-State Constr. LLC, 48 AD3d 373, 374 (1st Dep't 2008); Levinson v. 390 W. End Assoc., [*5]L.L.C., 22 AD3d at 403. Therefore the court also denies plaintiff's cross-motion insofar as it seeks to join Green as a defendant. C.P.L.R. §§ 1002(b), 3025(b); Hoppe v. Board of Directors of 51-78 Owners Corp., 49 AD3d 477 (1st Dep't 2008); Manhattan Real Estate Equities Group LLC v. Pine Equity NY, Inc., 27 AD3d 323 (1st Dep't 2006); Robinson v. Canniff, 22 AD3d 219, 220 (1st Dep't 2005); Heller v. Louis Provenzano, Inc., 303 AD2d 20, 25 (1st Dep't 2003). See American Theatre for the Performing Arts, Inc. v. Consolidated Credit Corp., 45 AD3d 506 (1st Dep't 2007); Chestnut Hill Partners, LLC v. Van Raalte, 45 AD3d 434, 435-36 (1st Dep't 2007); Wilhelmina Models, Inc. v. Fleisher, 19 AD3d at 268.

IV.CONCLUSION

In sum, the court grants defendant's motion to dismiss plaintiff's claims only to the extent of dismissing his claims under New York law for a false arrest September 22, 2003, and malicious prosecution concluding March 22, 2004. C.P.L.R. § 3211(a)(5); NY Gen. Mun. Law § 50-i(1)(c). The court denies defendant dismissal of plaintiff's remaining claims, including his federal constitutional claims relating to the arrest September 22, 2003, and prosecution concluding March 22, 2004. 42 U.S.C. § 1983; C.P.L.R. §§ 208, 214(5).

The court grants plaintiff's cross-motion to join Bronx County District Attorney Robert T. Johnson, James Fleming, Joseph DePaolo, Shawnique Simpson, Richard Serrano, and Joseph Turner as defendants and to amend his complaint as set forth in his proposed verified Amended Complaint, Exhibit A to his affidavit in support of his cross-motion, except as follows. C.P.L.R. §§ 1002(b), 1003, 3025(a) and (b). The court denies his cross-motion insofar as it seeks to join Police Officer Green and to amend his complaint to allege claims under New York law for a false arrest September 22, 2003, and malicious prosecution concluding March 22, 2004, against Robert T. Johnson, James Fleming, and Joseph DePaolo. C.P.L.R. §§ 1002(b), 3025(b); NY Gen. Mun. Law § 50-i(1)(c). He may amend his complaint to allege his federal constitutional claims against those three defendants relating to the arrest September 22, 2003, and prosecution concluding March 22, 2004.

Plaintiff shall file and serve his amended complaint as proposed, but with the disallowed defendant and claims deleted, and a supplemental summons, naming the original and newly permitted defendants, on all defendants within 30 days after service of this order with notice of entry. C.P.L.R. § 305(a). This decision constitutes the court's order.

DATED: October 30, 2009_________________________

LUCY BILLINGS, J.S.C.