Matter of Pitman v City of New York

[*1] Matter of Pitman v City of New York 2015 NY Slip Op 51253(U) Decided on August 18, 2015 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2015
Supreme Court, Queens County

In the Matter of the Application of Clinton Pitman, III, Petitioner,

against

City of New York, Respondent.



11542/14



Aaron David Frishberg, Esq.Stevens, Hinds & White, PC(Attorney for Petitioner)16 West 11th Street, New York, NY 10026

Taylor L. McGowan, Esq.Corporation CounselAttorney for Defendant)89-17 Sutphin Boulevard, Rm. 456Jamaica, NY 11435
Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 4 read on this motion

Notice of Petition1 - 2

Affirmation in Opposition3

Reply Affirmation4

Petitioner, Clinton Pitman, III, moves inter alia for leave to serve a late Notice of Claim on respondent, the City of New York (hereinafter "City"), to commence an action to recover damages arising from petitioner's allegedly false imprisonment on December 16, 2011, in the County of Queens, City and State of New York.

A Notice of Claim must be served within ninety days after the claim arises (GML 50-e[1][a]). A court may grant the claimant leave to serve a late Notice of Claim if leave is sought within the time limited for the commencement of the action (See Pierson v. City of New York, 56 NY2d 950, 954 [1982]).

As the statute of limitations herein is tolled until petitioner's 18th birthday (see Lanphere v. County of Wash., 301 AD2d 936, 937 [3d Dept. 2003]), the court may properly entertain the subject petition (See Pierson, supra, at 954).

"In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally incapacitated, (3) the public corporation [or its attorney or its insurance carrier] acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits" (Keyes v. City of New York, 89 AD3d 1086 [2d Dept. 2011] (citing GML § 50-e[5]; Iacone v. Town of Hempstead, 82 AD3d 888 [2d Dept. 2011]; Barnes v. New York City Health & Hosps. Corp., 69 AD3d 934 [2d Dept. 2010]; Chambers v. Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2d Dept. 2008])).

Petitioner fails to demonstrate any nexus between his infancy and the delay in filing a notice of claim sufficient to demonstrate a reasonable excuse (See Inglesias v. Brentwood Union Free Sch. Dist., 118 AD3d 785, 786 [2d Dept. 2014]; Doyle v. Elwood Union Free Sch. Dist., 39 AD3d 544, 545 [2d Dept. 2007]).

Petitioner likewise fails to submit any evidence to demonstrate that respondent had actual knowledge of the essential facts constituting the claim within ninety days or a reasonable time thereafter. The testimony of petitioner's father at a 50-h hearing in connection with his own, separate action, approximately one year after the subject incident is insufficient to constitute actual knowledge within a reasonable time period (See Sanchez v. City of New York, 116 AD3d 703, 704 [2d Dept. 2014]; Valilla v. Town of Hempstead, 107 AD3d 813, 815 [2d Dept. 2013]).

Moreover, contrary to petitioner's contentions, the mere fact that police officers employed by respondent effectuated the allgedly false arrest by placing the petitioner in the police vehicle while his father was arrested does not establish that respondent had actual knowledge (See Charles v. City, 67 AD3d 793 [2d Dept. 2009]; see also Rivera v. City of New York, 88 AD3d 1004, 1005 [2d Dept. 2011]; Blanco v. City of New York, 78 AD3d 1048 [2d Dept. 2010]; Bush v. City of New York, 76 AD3d 628, 629 [2d Dept. 2010]).

Petitioner fails to submit any evidence sufficient to connect the happening of the incident to some wrongdoing on the part of respondent (See Acosta v. City of New York, 39 AD3d 629, 630 [2d Dept. 2007]).

Knowledge of the alleged wrong is insufficient; what is required is knowledge of facts that underlie the legal theory or theories on which liability may be predicated (See Catuosco v. City of New York, 62 AD3d 995, 996 [2d Dept. 2009]; Felice v. Eastport/South Manor Cent. Sch. Dist., 50 AD3d 138, 148 [2d Dpt. 2008]).

To the extent that petitioner claims that respondent would not be prejudiced by the delay relies upon incorrect assumption that respondent had actual knowledge, it is insufficient to satisfy their burden (See Lyerly v. City of New York, 283 AD2d 647, 648 [2d Dept. 2001]). The passage of time has hampered respondent's ability to find witnesses and conduct a timely investigation into the claims (See Harris v. City of New York, 297 AD2d 473, 474 [2d Dept. 2002]). Finally, the absence of prejudice is not determinative in any event (See Cali v. County of Suffolk, 132 AD2d 555, 556 [2d Dept. 1987]).

Accordingly, the petition is denied, in its entirety.

August 18, 2015 ____________________

J.S.C.