Opinion
2017–07175 (Index No. 2245/17)
11-28-2018
In the Matter of Kenneth NICHOLSON, Respondent, v. CITY OF NEW YORK, Appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jeremy W. Shweder and Barbara Graves–Poller of counsel), for appellant. Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jeremy W. Shweder and Barbara Graves–Poller of counsel), for appellant.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, that branch of the petition which was, in effect, for leave to serve a late notice of claim with respect to the claim pursuant to 42 USC § 1983 alleging violations of the petitioner's federal civil and constitutional rights is denied as unnecessary, those branches of the petition which were, in effect, for leave to serve a late notice of claim with respect to the petitioner's state law claims are denied on the merits, and the proceeding is dismissed.
On June 19, 2015, the petitioner was charged in a felony complaint with, inter alia, criminal possession of a weapon in the second degree and menacing in the second degree, based upon the allegations that the petitioner had possessed a firearm in a holding cell of the 103rd precinct station house and had used it to threaten another individual in the cell. On April 4, 2016, the petitioner was released from custody and the charges against him were dismissed.
By order to show cause dated March 7, 2017, the petitioner commenced this proceeding, in effect, for leave to serve a late notice of claim on the City of New York, alleging, inter alia, violations of federal civil and constitutional rights pursuant to 42 USC § 1983, and state claims of assault, battery, false arrest, false imprisonment, and malicious prosecution. The Supreme Court granted the petition, and the City appeals.
The branch of the petition which sought leave to serve a late notice of claim to assert, pursuant to 42 USC § 1983, violations of the petitioner's federal civil and constitutional rights, should have been denied as unnecessary (see Matter of Royes v. City of New York, 136 A.D.3d 1042, 1044, 25 N.Y.S.3d 368 ; Gorman v. Sachem Cent. School Dist., 232 A.D.2d 452, 453, 648 N.Y.S.2d 461 ). Such a claim is not subject to the State statutory notice of claim requirement (see Felder v. Casey, 487 U.S. 131, 153, 108 S.Ct. 2302, 101 L.Ed.2d 123 ; Meyer v. County of Suffolk, 90 A.D.3d 720, 722, 934 N.Y.S.2d 235 ).
Further, as the petitioner correctly concedes, the Supreme Court lacked the authority to grant those branches of his motion which were for leave to serve a late notice of claim to assert the claims to recover damages for assault and battery since, at the time the motion was made, the statute of limitations had already expired as to those claims (see General Municipal Law §§ 50–e [5 ]; 50–i[1]; Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 ).
With respect to the petitioner's remaining state law claims, in determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the municipality in its defense on the merits (see General Municipal Law § 50–e[5] ; Matter of Mitchell v. City of New York, 112 A.D.3d 940, 977 N.Y.S.2d 368 ; Matter of Destine v. City of New York, 111 A.D.3d 629, 974 N.Y.S.2d 123 ). Actual knowledge of the essential facts is an important factor in determining whether to grant an extension, and should be accorded great weight (see Argueta v. New York City Health & Hosps. Corp. [Coney Is. Hosp.], 74 A.D.3d 713, 905 N.Y.S.2d 611 ; Matter of Gonzalez v. City of New York, 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139 ).
We disagree with the Supreme Court's conclusion that the City acquired actual knowledge of the essential facts constituting the relevant state law claims within 90 days after they arose or a reasonable time thereafter. Actual knowledge could not be readily inferred from two reports dated June 18, 2015, documenting an internal investigation conducted by the police department to determine how a firearm was allegedly carried into, and concealed within, the station house, that "a potentially actionable wrong had been committed by the [City]" against the plaintiff ( Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348 ; cf. Matter of Facey v. City of New York, 150 A.D.3d 826, 827, 54 N.Y.S.3d 115 ; Matter of Plantin v. New York City Hous. Auth., 203 A.D.2d 579, 580, 611 N.Y.S.2d 28 ; Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, affd 78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406 ). Moreover, the mere alleged existence of other police reports and records, without evidence of their content, and the involvement of the City's police officers in the alleged incident, without more, were insufficient to impute actual knowledge to the City (see Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1000, 55 N.Y.S.3d 325 ).
We also disagree with the Supreme Court's conclusion that the petitioner presented a reasonable excuse for his failure to serve a timely notice of claim. The petitioner's incarceration did not constitute such an excuse, since the relevant state law claims did not accrue, and the petitioner's time to serve a notice of claim did not begin to run, until he was released from custody (see Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 891, 6 N.Y.S.3d 78 ).
The petitioner also failed to present "some evidence or plausible argument" supporting a finding that the City was not substantially prejudiced by the more than eight-month delay from the expiration of the applicable 90–day statutory period until the commencement of this proceeding in March 2017 ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 912, 49 N.Y.S.3d 539 ).
Accordingly, those branches of the petition which were for leave to serve a late notice of claim to assert state law claims should have been denied.
MASTRO, J.P., SGROI, DUFFY and LASALLE, JJ., concur.