Opinion
8032 Index 250288/14
01-08-2019
Charles ROCHESTER, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Charles Rochester, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Charles Rochester, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Manzanet–Daniels, J.P., Tom, Mazzarelli, Webber, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about October 18, 2017, which, inter alia, denied plaintiff's motion for leave to file a late notice of claim, and granted defendants' motion to dismiss the complaint, unanimously modified, on the law, to deny defendants' motion as to the claim for malicious prosecution, and otherwise affirmed, without costs.
Supreme Court properly denied plaintiff's motion to deem his July 1, 2013 notice of claim timely filed for his claims accruing as of his June 27, 2012 arrest ( Pierson v. City of New York, 56 N.Y.2d 950, 954–956, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ). However, on appeal, defendants acknowledge that the notice of claim was timely as to plaintiff's malicious prosecution claim, which did not accrue until the April 1, 2013 dismissal of the charges against him ( Nunez v. City of New York, 307 A.D.2d 218, 219, 762 N.Y.S.2d 384 [1st Dept. 2003] ).
While plaintiff's claim alleging violation of 42 USC § 1983 was not subject to the notice of claim requirement ( Liu v. New York City Police Dept., 216 A.D.2d 67, 68, 627 N.Y.S.2d 683 [1st Dept. 1995], lv denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 [1995], cert denied 517 U.S. 1167, 116 S.Ct. 1566, 134 L.Ed.2d 666 [1996] ), the failure to plead that the alleged constitutional violations were the result of an official policy except in bare conclusory terms is fatal to this cause of action ( id. ; Connick v. Thompson, 563 U.S. 51, 60–62, 131 S.Ct. 1350, 179 L.Ed.2d 417 [2011] ).