Opinion
12736/2015
11-27-2019
Victor J. MARTINI, Plaintiff, v. CITY OF NEW YORK, New York City Police Department and District Attorney of Queens County, Defendants.
For Plaintiff: Kevin Kerveng Tung, Esq. For Defendants: Corporation Counsel of the City of New York
For Plaintiff: Kevin Kerveng Tung, Esq.
For Defendants: Corporation Counsel of the City of New York
Tracy A. Catapano-Fox, J.
Plaintiff commenced this action against defendant on May 7, 2015, alleging defendant violated his constitutional rights under the United States Constitution Second Amendment by improperly holding his guns, causing him financial damages. Issue was joined on May 28, 2015, and a trial was held on October 24, 2019, after which I render the following decision.
Findings of Fact
This action stems from plaintiff's arrest by defendant New York City Police Department (hereinafter referred to as "NYPD") and the removal of weapons from his home that remain in defendant NYPD's possession. Plaintiff testified as his sole witness at trial. Plaintiff testified that he worked for UPS for 38 years and was now retired. He testified that on January 2, 2012, he was arrested by defendant NYPD at home for a felony domestic violence charge. Plaintiff testified that defendant NYPD seized two guns, a Glock from his home and an older gun from his lockbox at the bank. He testified he has held a resident gun license since 1982 without incident. He testified that the value of the Glock was approximately $1000, and the older weapon had a value of $500. Plaintiff testified that his criminal charges were dismissed by Adjournment in Contemplation of Dismissal, after which he contacted his attorney to retrieve his weapons. Plaintiff testified that in November 2013, he and his attorney appeared before a hearing officer at One Police Plaza for a hearing to determine if he can have his weapons returned. He testified that the hearing was necessary because his gun license had been suspended pending his criminal charges, and once they were dismissed, he was eligible to seek reinstatement of his license.
Plaintiff testified that the hearing officer determined he was entitled to have his license reinstated and could retrieve his weapons. Plaintiff entered into evidence a letter from defendant NYPD dated March 18, 2014 and entitled "Final Agency Determination", which informed plaintiff that the administrative hearing held on November 6, 2013 resulted in a determination that his license has been continued after suspension. The letter further stated that the license continuation was subject to a positive background check and explanation for plaintiff's use of Xanax. The letter finally states that plaintiff must make an appointment with the NYPD Incident Unit to process the restoration of his license within thirty days of the date of the determination or his license will be canceled.
Plaintiff testified that he contacted defendant NYPD to obtain his weapons but was told he needed a property release from defendant Queens District Attorney's Office (hereinafter referred to as "QDA") before he can have his weapons returned. Plaintiff testified that he was told by NYPD that he could not have his guns back because he did not have a valid permit. He entered into evidence the NYPD Property Clerk Invoice dated January 2, 2012, which states that a Glock Model 19, Glock magazine, and 49 cartridges were seized from plaintiff's home due to the arrest. He testified that the invoice only included the Glock, because that weapon was taken out of his home, while the other weapon was retrieved from his lockbox at his bank.
Plaintiff testified that he sustained damages due to the violation of his Second Amendment constitutional rights. He testified defendants improperly took away his weapons, which were always locked away with the ammunition kept separately from them. He testified he held his gun license for over twenty years without incident, and his children had no knowledge of the weapon being in his home. Plaintiff admitted that the criminal charges were based on an allegation that he threatened to hang his wife and shoot her in the head, but argues that since they were dismissed, there was no reason for defendants to keep his weapons.
Plaintiff testified he also suffered financially due to defendants' improper actions. He testified that he lost the opportunity to work as security for Brinks, because he needs to have a weapon and be licensed. He acknowledged the Final Agency Determination stated he could file an Article 78 petition if he was dissatisfied, but he did not because he was happy with the decision. He also acknowledged he never filed an action in Supreme Court to get his weapons back, and still does not have a gun license.
He testified that he commenced this action to get an answer as to why defendants did not return his weapons to him, as he has a constitutional right under the Second Amendment to possess his weapons. Plaintiff also acknowledged he was not challenging the cancellation of his license, nor was he seeking to have his weapons returned, but wanted monetary damages in the amount of $25,000.
Plaintiff testified that defendants had notice of his complaint because he contacted them often. He testified that his attorney filed a Notice of Claim with defendants, but could not explain the delay in filing it. He also testified that he followed the process to get his guns returned but could not get the release from QDA. Plaintiff testified he contacted NYPD and his lawyer weekly trying to get the release and get answers on his license. He entered into evidence a letter from his counsel to QDA dated June 7, 2014, in which his attorney requested the property release be sent directly to counsel. He also entered into evidence a letter from his attorney to QDA dated July 9, 2014, in which counsel demanded a written explanation as to why QDA would not issue a property release.
Defendant called one witness at trial. Sergeant Brian Herbert testified that he has been working in the NYPD License Division for six years, and is the supervisor of the NYPD Incident Department, which handles issues with weapon licenses. He testified that plaintiff had a gun license, but it was revoked on July 25, 2014. Sergeant Herbert testified that plaintiff's gun license was "suspended as time served" by the hearing officer on March 18, 2014, and there was a period of time between March 18th and July 25th when plaintiff's license was suspended but not yet revoked. He testified that based upon his knowledge and experience, it is not true that plaintiff needed to have his firearms returned to him before getting his license back. He also testified that plaintiff could have appealed the hearing officer's decision if he disagreed with its requirements to have his license returned. Sergeant Herbert testified that he does not know why QDA did not provide plaintiff with a property release, but that since plaintiff still does not have a license, the NYPD Property Clerk's office cannot return the weapons to plaintiff.
He also testified that it is illegal in New York City for a person to possess a weapon without a license. Sergeant Herbert explained that the process to obtain a license is first to get a permit after consenting to a background check by NYPD, then once the permit is given, plaintiff would have thirty days to purchase a weapon, and upon purchasing the weapon, plaintiff would have three days to bring the weapon and purchase info to the NYPD licensing department for review and for NYPD to attach the gun to the permit, after which plaintiff would be given a gun license. Sergeant Herbert further testified that he reviewed NYPD's records, and determined plaintiff did not comply with these requirements as he did not appear for a background check or explain his Xanax usage as required by the Final Agency Determination.
On rebuttal, plaintiff testified he needed QDA to give him the property release before he could have his guns returned. He testified that there was no written denial by QDA, but only verbal communications between QDA and plaintiff's counsel. Plaintiff also testified that he went to One Police Plaza with his counsel to get his license reinstated in 2013, and spoke with Police Officer Brewster in the license division, who told him to obtain the property release form from QDA. Plaintiff also acknowledged that he could not afford to buy new weapons in order to obtain the license.
After the close of the evidence, defendants moved for a directed verdict as plaintiff filed a late Notice of Claim without leave of the court. Defendants argue that any employee knowledge of plaintiff's claim does not satisfy the actual notice requirements of General Municipal Law 50e, and plaintiff's Notice of Claim was clearly untimely. Defendant New York Police Department argues that it is not an independent entity, and therefore cannot be sued as a separate, independent agency from the City of New York. Defendants further argue that plaintiff still does not have a license, and did not complete the process to have his license reinstated so cannot retrieve his weapons. Finally, they argue that plaintiff failed to demonstrate the monetary value of the weapons and cannot sustain any monetary damages. Based upon the above, defendants argue that plaintiff failed to present sufficient evidence in support of his claims, and defendants' motion for a directed verdict should be granted and plaintiff's Complaint should be dismissed.
Plaintiff seeks damages in the amount of $25,000, for the value of his weapons totaling $1500 and the remainder for the pain and suffering he endured because of defendants' violation of his constitutional rights. Plaintiff admits he is not looking to have his weapons returned or his gun license reinstated. Rather, plaintiff argues he is entitled to $25,000 for the violation of his rights by failing to promptly return his weapons after the hearing officer ended his suspension. He also argues that as a retired individual, he could not afford to obtain new weapons, as required to complete the process of reinstating his license. Plaintiff further argues that defendant damaged his potential job opportunities because he was unable to obtain his weapon license for a security job.
Conclusions of Law
The Second Amendment to the United States Constitution confers a personal right to all citizens to "keep and bear arms." ( D.C. v. Heller , 554 US 570 [2008].) However, the rights secured by the Second Amendment are not without limitations. ( Id. at 595 ). While no state can take away an individual's Second Amendment rights, a state can place necessary and sensible restrictions on those rights. ( McDonald v. City of Chicago, Ill. , 561 US 742 [2010].) In New York, the possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the New York City Police Commissioner. ( Papaioannou v. Kelly , 14 AD3d 459 [1st Dept. 2005] ; Matter of Fondacaro v. Kelly , 234 AD2d 173, 177, [1st Dept. 1996], lv denied 89 NY2d 812 [1997].)
A plaintiff seeking to commence a tort action against a municipal defendant must serve a Notice of Claim within 90 days after accrual of the claim. ( General Municipal Law § 50-i ; Brunson v. New York City Health & Hosps. Corp. , 144 AD3d 854 [2nd Dept. 2016].) However, a New York Supreme or County Court may extend the time to serve the Notice of Claim after considering factors, such as whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter. (Id.; see also General Municipal Law § 50-e[7]. )
Plaintiff presented two separate claims: one for the failure to return his weapons, and also for the failure to reinstate his license. Both of these claims, for procedural and substantive reasons, must be dismissed.
Defendant NYPD's motion for a directed verdict is granted, as it presents a meritorious defense that it is an entity of The City of New York, not a separate, independent entity that may be sued by plaintiff. (See Troy v. City of New York , 160 AD3d 410 [1st Dept. 2018].)
Plaintiff failed to establish he timely filed a Notice of Claim with defendants as required under General Municipal Law § 50-e. (See Alas v. Brentwood Health Ctr., 121 AD3d 822 [2nd Dept. 2014].) Plaintiff presented the Notice of Claim, received by defendants on December 30, 2014, in which plaintiff alleges defendants violated his constitutional rights, and sought replevin of his personal property and damages for property loss. However, it is noted that plaintiff's Notice of Claim incorrectly states that plaintiff's criminal case was dismissed by the court and plaintiff was acquitted. Rather, plaintiff admitted during trial that the matter was resolved by an Adjournment in Contemplation of Dismissal on June 13, 2012, which is not an acquittal by the court or jury, but a non-substantive resolution that resulted in dismissal of the case on June 12, 2013.
Since plaintiff's weapons were properly seized pursuant to a lawful arrest, the time for filing a Notice of Claim would have been begun March 18, 2014, the date of defendant NYPD's Final Agency Determination ending his license suspension. However, it is undisputed that plaintiff did not serve his Notice of Claim until December 30, 2014, over nine months later. Plaintiff admitted during testimony that he did not know why the Notice of Claim had not been timely filed. Rather, plaintiff claims defendants had actual notice, as he had been contacting defendants himself and through his counsel, and only realized his efforts were futile by the end of 2014. He further argues that since he never received a definitive denial of the release of his handguns, the 90-day time period has not begun.
However, plaintiff's argument is without merit. It is first noted that this Court lacks authority to give leave to file a late Notice of Claim, as such motion must be made in Supreme Court. (See General Municipal Law § 50-e[7] ; Tannenbaum v. Town of Oyster Bay , 3 Misc 3d 132[A][App. Term 2nd Jud. Dept. 2004].) Plaintiff failed to establish its notice was timely, as he cannot establish that defendants had actual notice that he intended to make a claim against them. (See Rowe v. Nassau Health Care Corp. , 57 AD3d 961 [2nd Dept. 2008].) Further, plaintiff's argument that a written denial by defendants was required to start the 90-day period is meritless, as plaintiff had sufficient notice that defendants would not release his weapons until he complied with protocol. Plaintiff counsel's letter dated July 9, 2014 demonstrated plaintiff counsel already knew that defendant QDA would not provide a release based upon the NYPD Property Office's refusal to return the weapons. Therefore, taking the evidence in the best light for plaintiff, the accrual time for serving a Notice of Claim would have been October 9, 2014, and yet plaintiff did not serve the Notice of Claim until December 2014. Therefore, plaintiff's late Notice of Claim, served without leave sought in the Supreme Court, was a nullity. ( Jagroop v. Ramdhanny , 50 Misc 3d 115 [App. Term 2nd Dept. 2016].)
Further, plaintiff failed to establish entitlement to judgment against defendants, as he failed to establish that he followed the protocols as set forth in the hearing officer's determination to reinstate his license. Plaintiff entered into evidence NYPD Hearing Officer Margaret L. Shields' written Findings of Fact and Conclusions of Law dated March 7, 2014, recommended after a hearing held on November 6, 2013. Hearing Officer Shields found that NYPD was notified of plaintiff's arrest through the NYS Division of Criminal Justice Services and the 111th Precinct, but was not specifically notified by plaintiff, resulting in the revocation of plaintiff's license on August 12, 2013. Hearing Officer Shields found that plaintiff violated 38 RCNY § 5-33, by failing to make personal notification the NYPD Licensing Division of his arrest, and violated 33 RCNY § 5-23(a) by taking his firearm and storing it at a bank, rather than keeping it in his residence. She also concluded that since this was plaintiff's first arrest and no improper use of the firearms had occurred, it was an aberrant incident and recommended his license be continued after suspension, and suspension time having been served. This decision was affirmed by NYPD Director Thomas M. Prasso, on March 17, 2014, and plaintiff received the Final Agency Determination that required him to return to the NYPD Incident unit, undergo a background check, and present reasons for his Xanax use, in order to reinstate his license.
Plaintiff failed to present sufficient evidence that he complied with the above requirements in order to restore his license. Rather, he argued that he could not continue the restoration process without his guns, but this argument is without evidentiary support. Hearing Officer Shields' recommendation and the Final Agency Determination did not require plaintiff to obtain the seized weapons prior to reinstating his license. Based upon Sergeant Herbert's testimony, obtaining weapons before reinstating his license would have been illegal, and it was incumbent upon plaintiff to comply with the above requirements before obtaining any weapons.
Plaintiff failed to establish the proof of lost job opportunities, as he did not present any documentary evidence of a job application, job requirements, or communication from Brinks indicating it would not hire him as a security guard without a license. Without proof that he even sought to obtain employment that required a weapons license, plaintiff's claim for damages due to lost job opportunities is without merit.
Plaintiff also failed to establish his damages, by failing to submit documentary proof of the cost of his weapons, or their fair market value. Plaintiff alleges his Glock cost $1000 and his older weapon cost $500, but presented no photos of the weapons, no receipts for purchase, and no examples of the fair market value of either weapon.
Based upon the evidence presented, plaintiff failed to establish a meritorious claim, as he failed to establish that defendants willfully violated his Second Amendment rights by refusing to release his weapons. Rather, plaintiff failed to comply with the lawful process of reinstating his license, by complying with a background check and giving explanation for his Xanax usage, after which he would have received proof that he could have given to QDA and the Property Clerk's office to retrieve the weapons, and then could have presented the weapons to the NYPD Incident office, who could attach the weapons to his license and reinstate it.
Accordingly, I find plaintiff failed to timely file a Notice of Claim without seeking leave of the Supreme Court to file a late Notice of Claim, and failed to present a meritorious claim. Therefore, I grant defendants' motion for a directed verdict, and plaintiff's Complaint is dismissed.
This constitutes the decision of the Court.