Opinion
6183/2007.
Decided January 4, 2008.
Burns Harris, Suite 900, New York, NY, Plaintiff.
Michael Cardozo, Esq., NY, Defendant.
RELIEF SOUGHT
Plaintiff moves by order to show cause to deem his late notice of claim to have been timely served upon the defendant City of New York, nunc pro tunc. The defendant opposes and cross moves for the venue of the matter to be changed from Bronx County to Queens County, or, in the alternative for dismissal of the complaint.
AN INTERESTING (SOMEWHAT NOVEL) ISSUE
Does CPLR 504(3) mandate that an action against the City of New York must be brought and venued only in the county where a "continuing tort" first occurred; or can the action be commenced by the plaintiff in any County in the City of New York where the tort continued?
BACKGROUND
The plaintiff, a Queens resident, was arrested on January 17, 2006 outside of his home in Queens County and charged in that County with obstructing governmental administration and resisting arrest. Upon his arrest he was taken to the 107th precinct in Queens County, and thereafter confined, pending trial, in different facilities, including Riker's Island, which is in the territorial waters of Bronx County. Pending trial, he was confined at Riker's Island, in Bronx County until January 30, 2006. The plaintiff ultimately went to trial in the County of Queens and on June 1, 2006 was acquitted of all charges brought against him. He did not commence any civil proceedings or retain an attorney to do so until after his acquittal.
Plaintiff retained his present attorney on August 24, 2006; and on August 29, 2006, filed a (partially untimely) notice of claim against the City, alleging false arrest, false imprisonment, assault and battery, negligent hiring and retention, malicious prosecution and a violation of the plaintiff's constitutional rights. Although the notice of claim for malicious prosecution was timely filed the 90 day period had expired for claims alleging false arrest, false imprisonment, assault and negligent retention. The alleged civil rights/constitutional violations are not subject to the notice of claims requirements. In any event, a 50-h hearing was held on October 18, 2006, at which the plaintiff gave testimony as to the underlying incident which gave rise to each cause of action.
The plaintiff commenced an action by the filing of a summons and verified complaint in Bronx County on January 5, 2007. As in the notice of claim, the complaint alleges causes of action for false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, and a violation of the plaintiffs constitutional rights.
On January 26, 2007, the defendant served its answer to the complaint, and included with its answer a demand, pursuant to CPLR 504(3) to change venue to the county of Queens. By Order to Show Cause, dated March 16, 2007, the plaintiff moved pursuant to GML Section 50 to extend his time to serve a notice of claim (for false arrest, false imprisonment, assault and battery) and to have it deemed to have been timely served upon the defendant City of New York .The City cross-moved for a change of venue to the County of Queens, or in the alternative for dismissal of the action .
CONTENTIONS OF THE PARTIES
Plaintiff argues initially that all causes of action are properly venued since one of them (false imprisonment) took place in part in Bronx County, and contends therefore that the court has both the jurisdiction and discretion to grant the motion. Plaintiff argues further that since the claims for malicious prosecution and violation of civil rights are timely, and since the City's investigation on those claims is the same as for all the remaining claims, there is clearly no prejudice to the City to permit a late service of a notice of claim for the tardy claims and to allow the entire action to proceed. Plaintiff argues that, in any event, there will be no prejudice to the defendants if this relief is granted since the defendant had actual knowledge of, and an opportunity to investigate the facts underlying each claim since it was defendant's agents that made the arrest and participated in the prosecution of the plaintiff.
The City contends that the venue of the matter (including this motion) should be transferred from the Bronx to Queens County pursuant to CPLR 504 (3) since the plaintiff was arrested and prosecuted in Queens, and thus the incident, which "gave rise" to the claims, first occurred in the County of Queens .
The City argues, in the alternative, that the motion to file a late notice of claim should be denied because: (1) plaintiff has provided no reasonable excuse for the delay in filing; (2) the city was denied an opportunity to investigate the claims; and (3) the action as well as this motion, were improperly commenced and venued in Bronx County, rather than in the County of Queens (the claimed proper venue for this these actions); and further that the complaint should be dismissed since the filing of a notice of claim is a condition precedent to bringing the action. VENUE FOR ACTIONS AND PROCEEDINGS AGAINST NEW YORK CITY
General Principles and Burden of Proof
Venue, the proper situs of a proceeding, does not involve the jurisdiction of the court to hear and determine the action, and venue issues, unlike those involving personal and subject matter jurisdiction, do not result in the enlargement or impairment of substantive rights. Although personal and subject matter jurisdiction require compliance with constitutional mandates, venue issues are not so burdened, and the situs of an action may be located anywhere within the geographical jurisdiction of the court as deemed appropriate by applicable statute or rule. The commencement of an action or proceeding in an inappropriate county territorial subdivision of the Supreme Court of the State of New York, would not, with one exception not here relevant, result in a dismissal of the action, but would merely require a "change of venue," i.e., a transfer of the action to the appropriate county. It appears that the only mechanisms for changing venue are by consent of the parties, or by an order of the court rendered pursuant to a motion. (See CPLR 509, 510.) The Statutory Scheme
A "forum non conveniens" objection may result in a dismissal of the proceeding, despite personal and subject matter jurisdiction, if a New York court determines that based, inter alia, "on considerations of justice, fairness and convenience" it would be more appropriate to have the matter determined in a foreign forum. (See, Silver v Great Am. Ins. Co., 29 NY2d 356, 361 [1972].)
For the Supreme Court of the State of New York, the prescribed venue of an action is now codified at and statutorily authorized by Article 5 of the CPLR. Unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue. (See, CPLR 501, 503, 509; Medicorp v Avis Corp., 122 Misc 2d 813.)
CPLR 509 provides that "[n]otwithstanding any provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order [of the court] upon motion, or by consent. . . ." It is settled that upon a motion by defendant to change said venue defendant bears the burden to establish that the plaintiff's choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. ( Islamic Republic v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108; Clarke v Ahern Prod. Servs., 181 AD2d 514 [1st Dept 1992]; Bradley v Plaisted, 277 App Div 620 [3rd Dept 1951], lv denied 278 App Div 127.) In addition, it is settled that " unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." (See, Gulf Oil Corp. v Gilbert, 330 US 501, 508; Waterways Ltd. v Barclays Bank, 174 AD2d 324, 327 [1st Dept 1991]; Temple v Temple, 97 AD2d 757 [2nd Dept 1983].) For Actions Against the City of New York
The proper venue for actions against public entities is set forth in CPLR 504, which states in relevant part, that:
"Notwithstanding the provisions of any charter heretofore granted by the state and subject to the provisions of subdivision (b) of section 506, the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers, boards or departments shall be, for:
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3. the City of New York, in the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of New York."(emphasis added)
For Applications To Serve A Late Notice of Claim For applications to extend time to serve a notice of claim (GML section 50-e(7) provides its own specific statutory venue mandate:
"All applications [for an extension of time] under this section shall be made to the Supreme Court or to the County Court: (a) in a county where the action may properly be brought for trial, (b) if an action to enforce the claim has been commenced, in the County where the action is pending, or (c) in the event that there is no motion term available in any of the counties specified in clause (a) or (b) hereof, in any adjoining county". (emphasis added) .
DISCUSSION, FINDINGS AND CONCLUSIONS Venue For Continuing Torts
Undoubtedly, an action against the City of New York must be brought in the county where the action arose, if it arose within the City. (CPLR 504; Masch v. City of New York ( 270 AD2d 581, 591 NYS2d 832 [1st Dept. 1945]) It must be noted however, that CPLR 504 is only a venue statute and it provides no guidance to a court in ascertaining where a cause of action "arose". Thus, when disputes arise as to venue, the court must resolve same on a case by case basis. (See, e.g., McElroy v. City of New York, 45 Misc 2d 713, 257 NYS2d 376, aff'd, 25 AD2d 498, 267 NYS2d 848, [1st Dept. 1968]).
In any event, it does not seem to be disputed that (apart from the venue issue) a continuous tort, such as a false imprisonment, occurs and continues in every county to which a claimant is taken and victimized. However, some courts construing statutes such as CPLR 504 have reasoned that, for purposes of venue, the word "arose" must be read to mean only where the first act occurs which provides the basis for the cause of action. (See, e.g. Bergin v. Temple, 111 Mont. 539, 111 P2d 286; Article 53 A.L.R. 4th 1104, Lexis 53 A.L. R. 4th 1104 [this A.L.R. study includes a collection of state and federal civil cases in which courts have considered, for the purposes of venue, where a cause of action "arose"]).
For false imprisonment actions, the argument is sometime made that, since every false arrest is itself a false imprisonment (see, e.g., Budgar v. State of New York, 98 Misc 2d 588, 414 NYS2d 463; Blanch field v. State of New York, 104 Misc 2d 21, 427 NYS2d 682 [Ct Cl 1980]), a false imprisonment action must, for venue purposes, be held to "arise" only where the arrest initially occurred. It should be noted however that neither Budgar nor Blumenfeld were venue cases.
In the Bergin case, above, the Montana court held that for purposes of a venue statute, an action for false imprisonment could "arise" only in one county. However, there appears to be no New York authority for such a proposition . In fact, in New York there is sparse, but "well settled" appellate authority that for continuing torts, such as false imprisonment, each location where the tort occurs is a proper venue. ( Ellis v. Baker, 62 AD 542, 71 NYS 88, [3rd Dept.1901]). In Ellis, plaintiff was arrested in Saratoga County and imprisoned in a jail in Warren County. The trial court granted a motion changing the venue for the false imprisonment action from Saratoga County to Warren County "on the ground that the latter is the proper County", in other words the only proper venue . The Appellate Division reversed, stating:
"As part of the cause of action therefore arose in Saratoga County the action was properly brought there **** and the defendant was not entitled to a change of venue on the grounds on which the motion was made".
Obviously, when the Appellate Division said that " part of the cause of action arose in Saratoga", it clearly recognized that, for continuing torts, more than one county can qualify for venue, and that plaintiff's choice of venue in one of the counties, was proper and should not be disturbed, "on the grounds on which the motion was made". There appears to be no other case in New York dealing with this precise venue issue.
In any event, this Court now concludes that, in actions against the City of New York (for continuing torts such as false imprisonment), venue can be properly placed by plaintiff in any County in the City of New York in which the tort occurs or continues. In other words, the Court concludes that the tort continues to "arise" in every venue where it is committed. The Court finds that since one of the alleged torts (false imprisonment) "arose" (at least in part) in the County of the Bronx; the action was properly commenced by plaintiff in Bronx County; and thus this court has the obligation and authority (pursuant to GML Sec. 50-e) to decide the merits of the motion and cross-motion.
Despite the above conclusion, the defendant's motion to change venue to Queens County is granted, but not upon the grounds asserted by defendant.
There is another more compelling reason to grant the defendant's motion to change venue, that is, to prevent forum shopping. It appears that since the closure of the detention centers in Queens and Brooklyn, a majority of persons arrested for crimes allegedly committed in those counties are temporarily imprisoned in Bronx County on Riker's Island pending prosecution and trial in the County where they were arrested. If temporary imprisonment in Bronx County, pending prosecution and trial in another county, was the only factor justifying venue, Bronx County could conceivably be inundated with actions and claims which, in essence, almost entirely "arose" in another county. Such an outcome would undermine and be in derogation of the policy objective underlying CPLR 504 (3). (See, Morales v. City of New York. 189 AD2d 581, 591 NYS2d 832 [1st Dept. 1993]; Tesfaye v. Swett, 227 AD2d 150, 641 NYS2d 674 [1st Dept. 1996]; but, see, Ortiz v. Broadway Mgmt., 188 AD2d 401, 591 NYS2d 831 [1st Dept. 1992] and Rampe v. Giuliani, 227 AD2d 605, 643 NYS2d 214 [2nd Dept. 1996].
2 The City of New York Department of Correction operates various facilities, most of which are contained on Riker's Island, for the housing of detainees. Specifically, on Riker's Island there are seven different detention centers which are divided on gender lines, as well as an infirmary building and a contagious disease unit. The only other facilities which the department operates are the Manhattan Detention Complex and a barge [the Vernon C. Bain Center] anchored off the Hunts Point section of the Bronx. There had previously been detention centers in Brooklyn, Queens, and in the Bronx, but those facilities were closed prior to the time of the plaintiff's arrest and detention. Consequently, during his detention there were no facilities available to hold him in the county where he was arrested.
The court notes that in this case the crime was allegedly committed in Queens by a Queens resident, and all of the alleged torts (except for false imprisonment) "arose" in their entirety in the County of Queens. Plaintiff was arrested and initially imprisoned in Queens, and fully prosecuted in that County. It is presumed that all records concerning these events are located in Queens, and that it may be more convenient for witnesses to appear there. Had the circumstances been different (for example, if plaintiff had been arrested and initially detained in Queens based on a crime committed in Bronx County; and he was imprisoned and fully prosecuted in the Bronx), the court would not be inclined to grant defendant's motion to change venue to the County of Queens, despite the fact that the arrest and initial detention (false imprisonment) first "arose" in Queens.
Thus, a change of venue to the County of Queens is proper and appropriate in the case under consideration. Before doing so, however, since the action was properly commenced in Bronx County in the first instance, this Court must fulfill its obligation pursuant to GML 50-e(7) and must therefore consider and determine plaintiff's application to file a late notice of claim.
Late Notice of Claim The Relevant Factors and Standard For Review Prior to 1976 many courts construed GML § 50 (e) rigidly thereby depriving claimants of the right to commence a tort action against public entities despite the merit of the claim and the severity of the claimant's injury. In 1976 a remedial amendment to § 50 (e) was proposed and adopted by the legislature. The official committee that proposed said amendment stated that "it is intended that older judicial decisions construing the provisions of section 50 (e) rigidly and narrowly will be inapplicable as a result of these remedial amendments which will enable the court to apply the provisions in a more flexible manner to do substantial justice ." (emphasis added; Committee to Advise and Consult with the Judicial Conference). Significantly, in the published memorandum submitted in support of the said legislation, it was emphasized that:
"These amendments introduce a degree of flexibility long needed in this area of law without subverting the basic purposes of a notice of claim provisions. It is intended that these remedial amendments will overrule older decisional law which construed rigidly and narrowly the provisions related to late filing and will enable the court to construe these provisions liberally to do substantial justice". (1976 Legislative Annual; emphasis added.)
Subsequent to enactment of this remedial legislation, courts have (almost) uniformly recognized that the judiciary is now provided with a mandate to liberally construe its provisions; and that they now have been provided with sufficient discretion to afford greater flexibility in granting leave to serve a notice of claim after the 90 day period has expired, as long as the application is made within the year and 90 day limitations period. (See, e.g., Heinman v. City of New York, 85 AD2d 25, 28, 447 NYS2d 158 [1st Dept. 1982]; Barnes v. County of Onondaga, 103 AD2d 624, 627, 481 NYS2d 539, aff'd, 65 NY2d 664, 491 NYS2d 613).
The Relevant Factors
When an application to serve a notice of claim is made prior to the expiration of the statute of limitations, the Court, in the exercise of its discretion, usually considers the following factors:
As to the factors which the Court may consider when exercising its discretion, Sec. 50-e(1)(5) also provides "In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits".
(1)whether the plaintiff has at least any minimally viable claim;(2)whether plaintiff demonstrated a reasonable excuse for failure to timely serve a notice of claim;
(3)whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter;
(4)whether the claimant was an infant, or mentally or physically incapacitated, and the applicability of the tolling provisions, and
(5)whether the delay would substantially prejudice the municipality in maintaining its defense on the merits
The court finds that the plaintiff has presented a reasonable excuse for his failure to timely file a notice of claim for his claims of false arrest, false imprisonment, and negligence; and that the plaintiff has sufficiently established all other criteria necessary for the court to exercise its discretion to allow a late service of the notice. It is especially noted that the City has not been prejudiced because it had timely actual knowledge of the facts constituting the claim since, among other things, its employees conducted a full investigation and were involved in the arrest, imprisonment, and prosecution of the case against the plaintiff. (See, Santana v. City, 183 AD2d 665 [1st Dept. 1993] [trial court's denial of motion to file late notice of claim reversed because City had conducted full investigation of the shooting which gave rise to the claim]).
The court therefore concludes that substantial justice will be achieved by a grant of plaintiff's application to serve a "late" notice of claim .
CONCLUSION
For the reasons stated above, the Court grants plaintiff's motion to file a late notice of claim (a copy of which is annexed to the application) and deems the same to have been served timely — nunc pro tunc; and the Court also grants the defendant's cross-motion, however, only to that portion which seeks a change of venue to Queens County; and is otherwise denied.
This constitutes that the decision and order of the court.