Gibson v City of New York

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Gibson v City of New York 2011 NY Slip Op 34239(U) September 29, 2011 Supreme Court, Bronx County Docket Number: 260089/08 Judge: Robert E. Torres Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Oct 14 2011 Bronx CQuotv..Clerk_ NEW YORK SUPREME COURT - COUNTY OF BRONX .r\ I , i :~ if , PART~, SUPREME COURT-OF THE STATE OF NEW YORK . COUNTY OF BRONX:. I Case Disposed 0 o. I Settle Order . Schedule Appearance 0 --------------------------- --------------------------------------X l -- ---- ~ Index NQ. '~ ,,,, ~ -against- ·~ Hon. ,;; .~ 'JUDGE • NEW YORK v~ ,,.,,, 0260089/2008 Justice. '"""'--·------------------------------------------------------·-------X The fo llowing papers numbered 1 to _ _ Read on this motion, VACATE ORDER/JUDGMENT on the Motion Calendar of IL /L~/1,,.:H\ Notice don Sentember 09 2010 and duly submitted as No. 1 PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed J Answering Affidavit and Exhibits "1.. Replying Affidavit and Exhibits 3 Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the foregoing papers this motion is decided pursuant to CPLR 9002, and in accordance with the attached decision. 0 +-' '"d v t: ~ v ~ z-. <.2 +-' u v p,.. [j) v ci:: ,...., [j) i:: 0 ....., +-' 0 v .~ '"d v +-' [j) (rj ;::; ~ -, Q .___Dated 'I 1i't /,o (I _, J.S.C. [* 2] FILED Oct 14 2011 Bronx County Clerk SUPREME COURT OF TIIE STArL Ol· NL\V )ORK COUNTY OF BRONX PART 29 --------------------------------------------------------------------->:: DANA GIBSON. DECISION AND ORDER Plziintill. Index No.: 260089/08 -against- THE CITY OF NEW YORK. Defendant. ---------------------------------------------------------------------}\ HON. ROBERT E. TORRES: This is an action to recover damages for personal injuries allegedly sustained by plaintiff in three separate alleged false arrest/malicious prnsecution incidents. P\aintiffcummenccd this action by filing his complaint on Februar: 1J. 2008. claim mt'- a false arrest on September 22. 2003 and malicious prosecution concluding March 22. 2004: a false arrest on October 16. 2004 and malicious prosecution concluding February 24. 2005: and :1 raise arrest \lll February 16. 2005 and malicious prosecution concluding July 7. 2005 In May 2007 plaintiff commenced a proceeding seeking leave to serve a late notice of claim regarding the incidents of false arrest and malicious prosecution of which he complains in this action and ((l tnll the statute oflirnitations during the pcriud of his mental disability ending J\pril 16. 2007. Jn an order, dated June 4. 2007. the court (Paul Victor .. l S.C l granted plaintiffs application tu lilc a late notice of claim but did nut <.:.\tl'nd 1)J toll the st:itutc ur limitatiuns b<ised on plaintitrs unrcbuttcd allegations that he \Vas under a mcnrni disability that \V\rnld toll the limitations period. Defendant then moved in .lune 2008 to dismiss plaintitrs action clue to plaintiffs noncompliance with the General Municipal Lmv ~ 50-i. which requires actions against the City ot'Ncw York to be commenced within one year and <)l) days al"tcr .the occurrence on \vhich the action is based. In [* 3] FILED Oct 14 2011 Bronx County Clerk opposition, plaintiff relied on CPLR ~ 208 to toll the statute oflimitations so as to render his action timely. On June 17, 2008. plaintiff cross-moved to join as Jekndants the Bronx County District Attorney Robert T. Johnson and six individu~1l ernployL'l'S nf thc City of Nnv York and to amend his complaint to allege their responsibility for the three folse arrests and three malicious prosecutions The court (Lucy Billings . .I .S.C.) granted deti.:ndant's motion to dismiss plainti trs claims to a limited extent and granted plaintiffs cross-motion tojoin three additional parties and amend the complaint to include federal constitutional claims against the added defendants. Defendant City of Nnv '{ork ("the City") mm imlves for an order pursuant to CPLR ~ 5015(a)(3) vacating Justice Paul Victor's prior order. dated June 4. 2007. and upon vacating said order. denying plaintiff~s petition for leave to sene a late notice or claim: or for an order pursuant to CPLR 2221 granting rencwal!rcargumcnt ()1'plai11ti!fs motion for leave to Ille a late notice of claim: and upon granting renewal. f(.1r an order denying plaintitrs petition for leave to serve a late notice of claim: and upon an order denying plaintifrs petition for leave to file a late notice ol"claim: for an order vacating the order issued hy Justice Lucy Billings, dated October 2. 2009 pursuant to CPLR § 5015(a)(5) or in the interests of'justice: and for an order pursuant to CPLR § 321 l(a)(7) dismissing plaintiff's complaint for failure to comply \vith the notice of claim rules. Plaintiff moves for an order entering a default judgment against defendants City of Ne\v York, Robert T. Johnson. James Fleming. Sha\viquc Simpson, Robert Serrano and Joseph Depaolo. Plaintiff also moves pursuant to CPLR ~ :112,~ for an order compelling defendant to comply with plaintiffs discovery demands, including NYPD records. criminal cuurt files. medical records and District Attorney's records. The motions are consolidated for disposition and decided as follows: defendant's motion is -'- [* 4] FILED Oct 14 2011 Bronx County Clerk denied and this court adheres to the dcll'rminations of the original motions: plaintiffs motion for a default judgment is denied with leave to renevv. and plaintiffs motion to compel is granted to the following extent: Defendant is essentially asking this court to vacate t\\n prior orders. grant reargument or rennval. and to dismiss plaintiffs complaint on the ground that plaintiff misrepresented his mental capacity to the court and that he is not entitled to any toll under CPU~ ~ 208. thus. warranting dismissal or plaintiff's action as the n()ticc o!' claim and summons and complaint were untimely. A motion for leave to reargue shall be based upon matters or fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. CPLR 2221 (d)(2). A motion !'or leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shal J demonstrate that there has been a change in the Jaw that would change the prior determination. CPLR 222l(e)(2). Movant has failed to establish that the court misapprehended the Cacts or misapplied the controlling principles of lmv. Noticeabl:' absent from defendant's mntion papers is any medical evidence that \.Vould convince this cuurl that pl~iintiff should be denied the inference from his affidavit that he was disabled by his mental condition ~rnd treatment. thus warranting the CPLR ~ 208 toll. Defendant's arguments that plaintiff should not l1l' a\'ailed of the tull include that plaintiff commenced other actions, filed other notices of claim and amended pleadings and responded to discovery demands during the claimed period of disability. Defendant also set forth that plaintiff testified at his deposition on October 16. 2006 that he was essentially not suffering from any medical conditions, and thus, he should not be given the benefit of the toll. If defendant considered that thl'. court e;-.;cccckcl its· authority in the prior orders, defcndant·s [* 5] FILED Oct 14 2011 Bronx County Clerk remedy was to appeal the orders. /\cldi1 ional ly. defrndan1 railed lo show reasonable j us ti ti cation for failing to present such facts on the prior motions in accurdance wi 1h C PLR 2221 ( c )() ). Accordingly. leave to renew is granted. and upon 1-cne\:vaL the court adheres to its prior decisions. Likewise. defendant's application to vacate the prior orders and to dismiss plaintiffs complaint is denied. Defendant is directed to serve this order with notice of entry on the plaintiff and to pro\'ide authorizations to be signed by plaintiff within 30 days of the date of entry of this order. Plaintiff is directed to return the signed authorizations \.Vithin 30 days of receipt of same and defendant is directed to provide plaintiff with copies oft lie records to th._, e:-:tent possible \Vi thin 45 days urreceipt of the authorizations, upon the Jl<l)'llll'l1t of apprupriate JCL'S. if ~lll). Plaintiffs motion for an order entering a default judgment against the above-mentioned individual defendants is denied \.vith leave to rencvv. Although plaintiff provides evidence that defendants were served with the summons and complaint. plaintiff has not submitted '·proof of the facts constituting [his] claim," as required hy CPLR 3215(1). Plaintiffs affidavit docs not describe in any fashion the manner in w'hich the alleged torts occurred or the injuries he sustained as a result thereof. See Fe/fer v. Ma/peso. 210 AD2d 60 (199...) ). Moreover. plaintiff foiled to provide confirmation of the facts underlying his claim. Finally. plaintitrs affida\·it of service of the motion shcnvcd that not all cldcndants v.;e1-c served. /\ccorclingly. it is hereby ordered that plainti!f s motion for a dcfoultjuclgment is denied without prejudice tu 1-cJJC\\ upon the submission of proper papers. This constitutes the decision and order of the Cuurt. Dated: Scptember.lf, 2011 Bronx, New York --+- l?OBERrr TD!( Prof"'. RES U1 u.E

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