Opinion
INDEX NO. 152665/2019
07-31-2020
REGINALD WIGGINS, Plaintiff, v. THE CITY OF NEW YORK, BRIAN HENDRICKS, JOSEPH CARINHA, EDWARD CLIFFORD, ROBERT MOONEY, LUIS RAMIREZ, MICHAEL DEROSA, MICHAEL ROGERS, JOHN DOES #1-3, Defendants.
NYSCEF DOC. NO. 31 PRESENT: HON. DAKOTA D. RAMSEUR Justice MOTION DATE 3/31/20 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number, were read on this motion to dismiss (Motion 001): 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28
Plaintiff Reginald Wiggins commenced this action against Defendants City of New York (the "City"), retired NYPD Detectives Clifford, Mooney, Ramirez, Derosa, and Rogers, and three NYPD John Does (collectively the "Detectives"), alleging physical and emotional injuries stemming from Plaintiff's false arrest and malicious prosecution, at age 16, and 9-year incarceration which ended only when the District Attorney dismissed all charges against Plaintiff. The Detectives move, pursuant to CPLR 3211, to dismiss all claims against the Detectives pursuant to General Municipal Law (GML) § 50-e. Plaintiff cross moves, pursuant to GML § 50-e(6), to amend the notice of claim to name the Detectives individually. Both parties filed replies. Because this Court must adhere to First Department precedent requiring the notice of claim to name individual defendants, the Court grants the Detectives' motion to dismiss and denies Plaintiff's cross-motion to amend.
BACKGROUND
On a CPLR 3211 motion to dismiss, a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
At approximately 6 a.m. on May 28, 2008, Detective Hendricks and three other officers, after an unsuccessful search of Plaintiff's home, arrested Plaintiff for a shooting four days earlier on May 24, 2008 (Complaint ¶¶ 11-16). Prior to Plaintiff's arrest, the Detectives interviewed witnesses who identified a suspect who was not Plaintiff; that suspect was ultimately arrested and prosecuted for the shooting (Complaint ¶¶ 18-19).
The Detectives were personally involved in the investigation, including interrogations, identification procedures such as photo arrays and lineups, and the police paperwork and communication ultimately utilized by prosecutors to determine whether and how to proceed with charges against Plaintiff (Complaint ¶¶ 17, 25-27). One such lineup, which included Plaintiff, did not result in a positive identification by two witnesses to the shooting (Complaint ¶ 22-23).
Plaintiff was ultimately prosecuted by the District Attorney, convicted, and served nine years in prison until February 15, 2018, when all charges were dismissed (Complaint ¶ 29-30). During Plaintiff's incarceration, he spent significant time in solitary confinement and endured numerous strip searches (Complaint ¶ 30). Plaintiff was assaulted, on numerous occasions, by other prisoners, which resulted in various injuries including permanent facial scarring (id.). Plaintiff could not complete his education (Complaint ¶ 31). He attempted suicide (Complaint § 32).
On March 19, 2018, approximately ten years after Plaintiff was first arrested and just over one month after his release from prison, Plaintiff served a Notice of Claim on the City which named only the City, but not the Detectives (NYSCEF 7). After commencing and voluntarily discontinuing a federal lawsuit, Plaintiff commenced this action on March 19, 2019, asserting state claims for false arrest and malicious prosecution against the City and the Detectives (NYSCEF 6 [City Affirm] ¶¶ 3-4).
The City answered on its own behalf and now moves, pre-answer on the Detectives' behalf, pursuant to CPLR 3211, to dismiss, asserting that Plaintiff failed, pursuant to CPLR 217-e and GML 50-e, to file a timely notice of claim upon the Detectives individually by May 16, 2018, ninety days after the dismissal of Plaintiff's criminal charges. Plaintiff cross-moves, pursuant to GML § 50-e(6), to amend the Notice of Claim to name the Detectives, arguing in sum and substance that Plaintiff's notice of claim provided, as all Appellate Division Departments other than the First have now found, sufficient information for the City to investigate Plaintiff's claims.
DISCUSSION
The parties agree on the relevant facts and even the relevant legal landscape. The issue is a narrow one: whether a notice of claim must name individual defendants. Because the First Department, unlike the others, has held in the affirmative, the Court is bound by that precedent to dismiss this action.
NY CLS Gen Mun § 50-e(1)(a) provides, in relevant part, that
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, ... or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises. ...
Causes of action for false arrest and false imprisonment begin to accrue, for statute of limitations purposes, upon release from physical custody or confinement (Palmer v City of NY, 226 AD2d 149, 149 [1st Dept 1996]). Thus, Plaintiff was obligated to file a timely notice of claim by May 16, 2018, 90 days after the dismissal of all charges on February 15, 2018. Though Plaintiff undisputedly filed a notice of claim naming the City, he never filed a notice of claim naming the Detectives individually.
GML § 50-e(6), permits, with some limitations, amendment of notices of claim:
At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby
However, as the City highlights, applications to file late or amended notices of claim must be made within the applicable statute of limitations period; here, one year and ninety days, or May 16, 2019 (Pierson v New York, 56 NY2d 950, 954 [1982]; GML § 50-i[1]). Because Plaintiff did not cross-move to amend until June 26, 2019, amendment must be rejected as untimely. Thus, the only way Plaintiff can preserve the Complaint against the Detectives is by demonstrating that the notice of claim was never obligated to name the Detectives individually.
Service of the notice of claim upon the Detectives is not required (Goodwin v Pretorius, 105 AD3d 207, 209 [4th Dept 2013]).
"The purpose underlying the notice of claim requirement is to provide a municipality with sufficient information to enable it to promptly investigate the claim and ascertain its potential exposure to liability" (Williams v City of NY, 153 AD3d 1301, 1304 [2d Dept 2017], citing Brown v City of New York, 95 NY2d 389, 393-394 [2000]). Because Plaintiff argues, in sum and substance, that the First Department misinterpreted the Court of Appeals' decision in Brown v City of NY, (95 NY2d 389 [2000]), by imposing an "extra requirement" for notices of claim, this Court begins its discussion with Brown.
Brown was a sidewalk trip-and-fall case in which the Supreme Court, after a verdict in Plaintiff's favor, granted the City's motion to set aside the verdict, holding that the plaintiff was precluded from arguing at trial that the sidewalk was defective when the notice of claim was defective had highlighted the curb (95 NY2d at 392 [2000]). The Appellate Division affirmed, holding that "Plaintiff's notice of claim was deficient in failing to notify the City of the location of the injury-causing defect" (95 NY2d at 392).
In reversing, the Brown Court noted that GML § 50-e(2), which governs the form and contents of the notice of claim, including information about the claimant and counsel, the nature of the claim, the time and place where the claim arose, and the damages and injuries, "does not require those things to be stated with literal nicety or exactness" (95 NY2d at 393). The Brown Court examined the purpose of a notice of claim: "[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim..." (95 NY2d at 392-93 [2000] ["courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident [emphasis added]]). The test of the sufficiency of a Notice of Claim is merely "whether it includes information sufficient to enable the city to investigate"; "Nothing more may be required" (95 NY2d at 393, citing O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Schwartz v City of New York, 250 NY 332, 335 [1929]). Brown relates, however, only to the place and nature of an underlying tort claim; it does not speak to whether a notice of claim must name municipal employees as a precondition to later sue those employees individually.
The Fourth Department was first to re-examine the relatively recent precedent barring "the commencement of an action against an individual who has not been named in a notice of claim where such notice is required by law" (Goodwin v Pretorius, 105 AD3d 207, 210-211 [4th Dept 2013]). The Court traced several Appellate Division decisions, including Tannenbaum v City of New York, (30 AD3d 357, 358 [1st Dept 2006]), back to White v Averill Park Cent. Sch. Dist. (195 Misc 2d 409, 411 [Sup Ct, Rensselaer County 2003]), the first known case to hold that "[GML § 50-e] makes unauthorized an action against individuals who have not been named in a notice of claim" (Goodwin, 105 AD3d at 210-211 [4th Dept 2013], citing Tannenbaum, 30 AD3d at 358).
The White court, the Fourth Department noted, reached this conclusion without "any legal authority," reasoning only that the failure to name individual employees deprives a municipality of "enough information ... to adequately investigate the claim" (Goodwin, 105 AD3d at 211, citing White, 195 Misc 2d at 411). The Fourth Department also examined Tannenbaum's citation to Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521 [1989], noting—correctly, in this Court's estimation—that Rattner examined only "whether a notice of claim, to be served on the public corporation, was required at all, not whether the notice of claim needed to name the specific individual employees" (Goodwin, 105 AD3d at 212, citing Tannenbaum, 30 AD3d at 358 and Rattner, 156 AD2d at 526).
Though this Court ultimately agrees with—albeit does not follow—the Second, Third, and Fourth department's conclusions, it does not agree with the Fourth Department's characterization of White, essentially for the reasons set forth in Alvarez, discussed below. White analyzed the relevant statutes, and extended the premise that "a theory of liability not mentioned in the notice of claim generally may not be asserted in a subsequent lawsuit" to the naming of individual defendants, holding that a failure to name individual defendants prevents a municipality from investigating whether or not the claimant has a valid claim against that employee. As subsequent decisions have discussed, this could affect indemnification decisions (see Alvarez v City of NY, 134 AD3d 599, 606 [1st Dept 2015], citing GML § 50-k).
The Fourth Department also examined Schiavone v County of Nassau, which determined that the failure to serve a notice of claim on resident physician municipal employees did not preclude the subsequent action against them, holding that "the physicians in the instant case allegedly performed the acts complained of; they needed no advance notice, as does a municipality, to investigate facts of which they were unaware or to obtain information which subsequently might cease to be available" (51 AD2d 980, 981, 380 NYS2d 711 [2d Dept 1976], aff'd 41 NY2d 844 [1977], quoting Sandak v Tuxedo Union Sch. Dist., 308 NY 226 [1954] ["[the] teachers [whose alleged negligence caused injury to a student] ... were present at the time the accident occurred, and had first-hand knowledge of the circumstances. Unlike a municipal corporation, the teachers needed no opportunity to investigate the claim, and consequently had no need for advance notice thereof."]). The Schiavone Court noted that "[o]n a purely practical basis, it is obvious that, uniquely in medical malpractice actions, a potential claimant may be unable to ascertain the perpetrators of the alleged malpractice within the 90-day notice period (51 AD2d at 981 [2d Dept 1976]).
After thoroughly examining the history of the precedent, the Fourth Department ultimately departed from it, holding that "although precedents involving statutory interpretation are entitled to great stability, ... courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute" (Goodwin, 105 AD3d at 215). Phrased another way, "the underlying purpose of the [notice of claim] statute may be served without requiring a plaintiff to name the individual agents, officers or employees in the notice of claim" (Goodwin, 105 AD3d at 216).
Two years later in 2015, the Third Department decided Pierce v Hickey, in which the plaintiff failed to name the individual defendant, an employee of the County of Schoharie, in the notice of claim (129 AD3d 1287, 1289 [3d Dept 2015]). Pierce adopted Goodwin's reasoning, holding that "the purpose underlying the notice of claim requirement—to provide a municipality with sufficient information to enable it to promptly investigate the subject claim and ascertain its potential exposure to liability ... may be served without requiring a plaintiff to name the individual agents, officers or employees in the notice of claim" (Pierce v Hickey, 129 AD3d 1287, 1289 [3d Dept 2015], citing Brown, 95 NY2d at 394 [2000] and Goodwin, 105 AD3d at 216).
Several months later, the First Department again examined the issue in Alvarez v City of NY (134 AD3d 599, 606 [1st Dept 2015]), a case, like this one, involving an alleged false arrest in which the notice of claim did not specifically name NYPD members, reference John Does, or otherwise indicate an intention to pursue claims against individuals. The First Department discussed both Goodwin and Pierce, and reaffirmed contrary holdings, including Tannenbaum and White, requiring individual municipal defendants to be named in the notice of claim as a prerequisite to suit.
The First Department distinguished Pierce, finding that, "the plaintiff knew the name of the individual who was the driving the truck from the outset of the case. ... Nevertheless, the county defendant was able to promptly investigate and evaluate the claim as well as its employee's conduct" (Alvarez, 134 AD3d at 602). This Court disagrees with that reasoning. First, Plaintiff's knowledge of the individual's identity should logically support dismissal, as Plaintiff had the means to name the driver in the notice of claim, thereby facilitating the county defendant's investigation. Second, the names of officers involved in Plaintiff's arrest and prosecution are, if not immediately known to, then certainly more readily ascertainable by the City than to Plaintiff, who could not reasonably be expected, after a decade of incarceration, to name and identify those involved in Plaintiff's arrest and prosecution in a notice of claim and serve it within 90 days.
The First Department also distinguished Goodwin, finding that the Goodwin Court "did not explain how a municipality can undertake an adequate and timely investigation of the claim made against the individuals where those individuals are not named in a notice of claim, but rather become defendants in an action commenced at a much later date (Alvarez, 134 AD3d 599, 603 [1st Dept 2015]) Again, this Court disagrees; Goodwin cited to Schiavone, 51 AD2d at 981, which applied to physicians the same principle applied to teachers by the Court of Appeals in Sandak (308 NY at 232-233): that the teachers were "present at the time the accident occurred, and had first-hand knowledge of the circumstances. Unlike a municipal corporation, the teachers needed no opportunity to investigate the claim, and consequently had no need for advance notice thereof." In other words, a municipality is the only entity entitled to receive notice because it is the entity best suited—and authorized—to actually investigate. Indeed, the two Alvarez dissenters argued that "in cases of alleged false arrest, it would appear that the municipal defendant is uniquely positioned to know the facts of any such claim—at a minimum, which officers were on duty and in the vicinity" (134 AD3d at 609 [Manzanet-Daniels, J.]; see also Chamberlain v City of White Plains, 986 F Supp 2d 363, 397 [SDNY 2013] [notice of claim which provides specific date, time, and address of the incident and detailed description of the alleged facts would result in a "straightforward inquiry for the City to determine which individual officers had been dispatched"]).
In rejecting this argument, the Alvarez plurality responded that "[t]he same argument holds true for a plaintiff: he or she, during the course of the criminal proceedings leading up to a dismissal of any charges would know, at a minimum, the names and badge numbers of the arresting officers, thus making it simple to name those officers in a notice of claim. Indeed, at a bare minimum, the notice of claim must use the 'Police Officer John Doe' or similar language, such as used in the complaint herein, to put the municipality on notice that its employees will be sued in their personal capacities, thus meeting the statute's notice requirements" (134 AD3d at 605) However, this ignores Sandak, Schiavone, and Goodwin's reasoning: that the individual defendants are not entitled to notice, regardless of their affiliation with the municipality.
It also minimizes the practical difficulties faced by any plaintiff in investigating, framing, and serving a notice of complaint setting forth all possible defendants and legal theories in just 90 days and particularly for this Plaintiff, just 16 years old when he was searched and arrested in the early morning, prosecuted, and incarcerated for nearly half his life. It is difficult to imagine how an individual in Plaintiff's position—for half of his incarceration, not even old enough to have a beer—could be expected to simultaneously deal with the realities of imprisonment and either recall or obtain the information needed to adequately detail a notice of claim. Applying Alvarez's reasoning here, as the City urges in reply, effectively adds insult to injury by allowing the evidentiary decay—faded memories, lost records, witness relocation, defendant retirement—invoked by the First Department as issues of "fundamental fairness" to benefit the individual defendants even though any delay was ultimately the result of Plaintiff's undisputedly unjustified incarceration (see Alvarez, 134 AD3d at 606).
Indeed, as recent events show, identifying a prospective defendant's agency, let alone that defendant's identity, can be elusive (Zolan Kanno-Youngs, Unidentified Federal Police Prompt Fears Amid Protests in Washington, New York Times [June 4, 2020]; Rocco Parascandola, NYPD Cops accused by advocacy groups of covering shield numbers during George Floyd protests, New York Daily News [June 4, 2020]; N.Y.P.D's Use of Unmarked Van in Arrest Draws Parallels to Portland, New York Times [July 28, 2020, https://www.nytimes.com/2020/07/28/nyregion/nypd-protester-van.html]).
After Alvarez, the Second Department adopted the Third and Fourth Department's reasoning in Blake v City of NY (148 AD3d 1101 [2017]). The Blake Court specifically rejected Alvarez, holding, like the Third and Fourth Departments, that "the purpose of the notice of claim requirement is to notify the municipality, not the individual defendants," and therefore that "listing the names of the individuals who allegedly committed the wrongdoing is not required" (148 AD3d at 1106, citing Scott v City of New Rochelle, 44 Misc 3d 366, 377-378 [Sup Ct, Westchester County 2014]; GML § 50-e[2]).
As Plaintiff notes, numerous federal district courts have examined the issue and determined, as one court put it, that "the Second, Third, and Fourth Departments have the better of the argument" (Mortimer v City of New York, 2018 WL 1605982, at *12; 2018 US Dist LEXIS 53492, at *36 [SDNY Mar. 29, 2018]). While it is true, as the First Department stated in Alvarez, that at least one federal district court favored the First Department's reasoning in Tannenbaum over the Fourth in Goodwin, (see 134 AD3d at 606-607, citing DiRuzza v Village of Mamaroneck, 2014 WL 6670101, 2014 US Dist LEXIS 166208 [SDNY, Oct. 6, 2014, No. 14 CV 1776 (VB)]), it should be noted that DiRuzza was decided prior to Pierce; unquestionably, more recent federal district court decisions have favored the Second, Third and Fourth Departments' interpretation (Burch v City of NY, 2016 US Dist LEXIS 195623, at *58-59 [EDNY Apr. 22, 2016, No. 11-CV-2841] ["This Court has "already predicted that the New York Court of Appeals, were it to consider this issue, would adopt the sound reasoning in Goodwin and concluded that the failure to name individual officers in a Notice of Claim does not defeat a plaintiff's state law claims."]; Mortimer, supra; Alexander v City of Syracuse, 2018 US Dist LEXIS 210687, at *11, n 4 [NDNY Dec. 13, 2018, No. 5:17-CV-1195] ["Because the New York Court of Appeals is likely to adopt the Fourth Department's reasoning in Goodwin..."]). These decisions merely underscore, however, the profound and irreconcilable Department split; while the federal district courts have the discretion to choose their preferred interpretation, this Court is bound by the First Department's precedent (see Flowers v City of NY, 53 Misc 3d 922, 933 [Sup Ct, NY County 2016] ["This court is bound to follow appellate precedent. Goodwin was discussed at length in Alvarez, ... a First Department decision."]).
In so holding, however, this Court notes the longstanding and "strong public policy of this State to dispose of cases on their merits" (Chelli v Kelly Group, P.C., 63 AD3d 632, 633 [1st Dept 2009]; see also Se Dae Yang v New York City Health and Hosps. Corp., 140 AD3d 1051, 1052 [2d Dept 2016] ["General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones"]). This commitment is undermined where courts augment already-onerous statutory hurdles requiring individuals, under difficult circumstances, to ascertain individual defendants' identities (see Martire v City of NY, 2009 NY Slip Op 31648[U], *3 [Sup Ct, NY County 2009] [the court, after denying a motion for default judgment against an officer "Mazzarti" in response to the City's argument that the subject officer was likely "Maestranzi," nevertheless denied amendment of the complaint as to state claims against "Maestranzi" because only "Mazzarti" was named in the notice of claim"], citing Tannenbaum, 30 AD3d at 358; Rodriguez v City of NY, 42 Misc 3d 1232[A] [Sup Ct, Richmond County 2014] [Plaintiff, indicted for attempted murder of a police officer but ultimately convicted only of a DWI, alleged that officers physically assaulted him and spit in his face], citing Tannenbaum, 30 AD3d at 358; Coleman v City of NY, 2011 NY Slip Op 31954[U] [Sup Ct, NY County 2011] [plaintiff alleged assault by police officers during arrest for charges which were ultimately dismissed], citing Tannenbaum, 30 AD3d 357]; Jacobs v Metro. Transportation Auth., 180 AD3d 657, 658 [2d Dept 2020] [reversing Supreme Court's determination that public interest exception to notice of claim requirement applied]; Colena v City of N.Y., 68 AD2d 898 [2d Dept 1979] [holding that assault claim against police officer is not deemed sufficient to alert the City to a false imprisonment claim]; Brown v Metro. Transp. Auth., 169 AD2d 570, 571 [1st Dept 1991] [affirming denial of motion to file late notice of claim, holding that reports issued by Civilian Complaint Review Board and the Transit Authority Police Department did not constitute a valid substitute for a timely notice of claim]; Davis v City of N.Y., 153 AD3d 658, 661 [2d Dept 2017] ["The plaintiff's testimony at the General Municipal Law § 50-h examination cannot be used to amend the theories of liability set forth in the notice of claim."]; Pierson v Ray, 386 US 547 [1967] [establishing qualified immunity for federal officials]).
Failing to examine the merits of Plaintiff's claim here risks perpetuating the faults of a system which already failed him once. It also serves, in practice, to afford greater procedural protections to victims of negligence than to those devastated by the machinery of the state. To the extent, however, that this Court is constrained by precedent to find that Plaintiff's failure to name the Detectives in the Notice of Claim merits dismissal against them, the motion for summary judgment is granted, and the cross-motion to amend is denied.
CONCLUSION
For the reasons above, it is
ORDERED that Defendants' motion to dismiss (001) is GRANTED, and the Complaint is severed and dismissed as against all Defendants other than the City of New York; and it is further
ORDERED that Plaintiff's cross-motion to amend is DENIED; and it is further
ORDERED that Defendants shall, within 30 days, serve a copy of this order with notice of entry upon all parties.
This constitutes the decision and order of the Court. July 31 , 2020
New York, NY
/s/ _________
DAKOTA D. RAMSEUR, J.S.C.