Tomasso v. City of New York

Full title: PETER TOMASSO, Petitioner, v. THE CITY OF NEW YORK, THE NEW YORK CITY…

Court: Supreme Court of the State of New York, Albany County

Date published: Dec 10, 2010

2010 N.Y. Slip Op. 33400 (N.Y. Sup. Ct. 2010)

Opinion

112141/10.

December 10, 2010.

DECISION/ORDER

CYNTHIA S. KERN, Judge.

Recitation, as required by CPLR 2219(a), of. the papers considered in the review of this motion for : ___________________________________________

1 2 3

Papers Numbered Notice of Motion and Affidavits Annexed....................... _______ Notice of Cross Motion and Answering Affidavits............... ________ Affirmations in Opposition to the Cross-Motion................ ________ Replying Affidavits........................................... _______ Exhibits...................................................... _______

Petitioner brought the instant petition to serve a late Notice of Claim for his action to recover damages for false arrest, false imprisonment, malicious prosecution and violations of his civil rights stemming from an arrest that took place on February 15, 2010. For the reasons set forth below, his motion is granted.

The relevant facts are as follows. Petitioner was arrested on or about February 15, 2010 on charges of aggravated unlicensed operation of a vehicle in the third degree and unlicensed driving. The charges against him were dismissed on July 15, 2010. Petitioner filed a Notice of Claim on July 30, 2010, which was timely for his claim for malicious prosecution but after the expiration of the statutory period for his claims for false arrest and imprisonment. Petitioner then petitioned the Court for leave to serve a late Notice of Claim on his claims for false arrest and imprisonment on October 5, 2010, over seven months after their accrual. Petitioner now seeks leave to file a late Notice of Claim on his claims for false arrest, false imprisonment, and violations of his civil rights pursuant to 42 U.S.C. § 1983. For the reasons set forth below, his motion is granted with respect to his claims for false arrest and imprisonment. As to petitioner's claim for the alleged violation of his civil rights, compliance with the notice of claim requirement is not required for claims brought under § 1983. Felder v Casey, 487 U.S. 131, 138 (1988).

Prospective plaintiffs must serve a Notice of Claim against a municipal entity within 90 days after the claim arises. See General Municipal Law ("GML") § 50-e(l)(a). However, courts have broad discretion to grant leave to serve a late Notice of Claim pursuant to GML § 50-e(5). In determining whether to grant leave, the court must consider whether the petitioner had a reasonable excuse for his or her delay, whether the delay prejudiced the municipality's defense and whether the municipality acquired "actual knowledge of the essential facts constituting the claim" within 90 days after the claim arose or within a reasonable time thereafter. See GML § 50-(e)(5); Strauss v New York City Transit Authority, 195 AD2d 322 (1^st Dept 1993). It is plaintiff's burden to prove each of these elements, including lack of prejudice to the defendant. See Delgado v City of New York, 39 A.D.3d 387 (1^st Dept 2007); Ocasio v New York City Health and Hospitals Corporation, 14 A.D.3d 361 (1^st Dept 2005). Although no one factor is dispositive, the court must give particular consideration to whether the defendant acquired actual knowledge of the claim within the 90-day statutory period or shortly thereafter. See Justiniano v New York City Housing Authority Police, 191 A.D.2d 252 (1^st Dept 1993). The lack of a reasonable excuse alone is not fatal. See Velasquez v City of New York Health and Hospitals Corp., 69 A.D.3d 441 (1^st Dept 2010).

Considering all the above factors together, petitioner's motion to serve a late notice of claim is granted. Plaintiff fails to satisfy the first factor, the existence of a reasonable excuse. He has offered no excuse for his failure to file a timely Notice of Claim. However, the absence of a reasonable excuse is not by itself fatal to an application for leave to file a late Notice of Claim. See Velasquez v City of New York Health and Hospitals Corp., 69 A.D.3d 441 (1^st Dept 2010), supra.

Moreover, the City acquired actual knowledge of the claim within the statutory time period. The courts have found actual knowledge on the part of the City where the police are directly involved in the underlying claim. See Schiffman v City of New York, 19 A.D.3d 206 (1^st Dept 2005); see also In re Ansong v City of New York, 308 A.D.2d 333 (1^st Dept 2003). In Schiffman v City of New York, the Court held that the City acquired notice of the essential facts underlying the claim "based upon the facts that police were called to the scene and were directly involved in all aspects of the claims emanating from the death of petitioner's decedent. . . . Such knowledge is documented in the individual officers' memo books and official Police Department reports." In In re Ansong v City of New York, the Court held that "[r]espondent's claimed lack of actual knowledge is completely refuted by the fact that the officers who allegedly assaulted petitioner would, as respondent's employees, have had immediate knowledge of the events giving rise to this dispute." The Court also held that there was no prejudice to the City since "police and criminal records pertaining to petitioner's arrest, as well as the favorable disposition of charges against him, are presumably still in existence." Id.

In the instant case, the City acquired actual knowledge of the claim within the statutory time frame or shortly thereafter based upon the facts that it was the police who arrested petitioner and it is the actions of the police in arresting petitioner which form the basis of petitioner's claim. The officers involved in petitioner's arrest had immediate knowledge of the essential facts of his claim and their knowledge would be documented in their memo books as well as police and Criminal Court records. Therefore, pursuant to the First Department holdings in Schiffman and In re Ansong, the officers' involvement provided the City with notice of the essential facts of petitioner's claim. Furthermore, the City was not prejudiced by the delay since it had actual knowledge of the essential facts and any records pertaining to his arrest are presumably still in existence. In re Ansong v City of New York, 308 A.D.2d 333, 334 (1^st Dept 2003).

Accordingly, petitioner's motion to serve a late Notice of Claim for his claims for false arrest and false imprisonment is granted. This constitutes the decision and order of the Court.