Opinion
Index No. 529326/2021
11-21-2022
Alain Brown, Petitioner, v. The City of New York, Respondents.
Attorneys for Plaintiff: Michael Aniello Madonna, Esq., Trolman Glaser Corley & Lichtman P.C. Attorneys for Defendants: Jonathan Ross Sherwin, Esq., New York City Law Dept.
Unpublished Opinion
Attorneys for Plaintiff: Michael Aniello Madonna, Esq., Trolman Glaser Corley & Lichtman P.C.
Attorneys for Defendants: Jonathan Ross Sherwin, Esq., New York City Law Dept.
Consuelo Mallafre Melendez, J.
Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF Nos: 10 - 11, 13, 14, 15 - 25, 27, 28 - 34
Petitioner moves to deem a late notice of claim timely filed. The proposed notice of claim, filed on November 4, 2021, appears to assert two distinct claims against the New York City Police Department: one for civil rights claims, i.e., false arrest, malicious prosecution, excessive force, negligent hiring and a second claim sounding in negligence to recover for injuries allegedly resulting from an alleged pursuit by police. Both claims are in connection with an incident occurring on June 15, 2021. Petitioner alleges that on that day he was approached by police with guns drawn. He claims that while allegedly cooperating, he heard a gunshot and fled the scene. Petitioner further alleges that he was pursued by police in a high-speed chase and that his vehicle was bumped by police vehicle(s) resulting in a collision wherein he sustained extensive injuries. Petitioner asserts claims for personal injuries sustained allegedly as a result of the negligence and carelessness of police during the chase. He also makes claims for violations of civil rights allegedly as result of the interaction with police during the incident. Respondents deny petitioners allegations adding that the arrest was pursuant to a warrant for violation of an order of protection and that the collision did not involve police vehicles.
Pursuant to General Municipal Law § 50-e(1)(a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within 90 days after the claim arises. See Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460 [2016]. "In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served, nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits. Matter of Brown v. City of New York, 202 A.D.3d 783 [2d Dept 2022]; see General Municipal Law § 50-e[5]; Matter of Reddick v. New York City Housing Auth., 188 A.D.3d 890, 890 [2d Dept 2020]. The presence or absence of any factor is not determinative (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 460; Etienne v. City of New York, 189 A.D.3d 1400, 1402 [2d Dept 2020])." Vincent v City of New York, 208 A.D.3d 589, 590 [2d Dept 2022].
The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the trial court. Matter of Ruiz v City of New York, 154 A.D.3d 945, 946 [2d Dept 2017]. "Although the Supreme Court has 'broad discretion' to evaluate the factors set forth in General Municipal Law § 50-e(5), its determination must be supported by record evidence. (E.R. v. Windham, 181 A.D.3d 736, 738 [2d Dept 2020] quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 465)." Parker v City of New York, 206 A.D.3d 936, 937-938 [2d Dept 2022].
The court finds that petitioner set forth a reasonable excuse for filing the notice of claim beyond the proscribed ninety days. He submitted his affidavit stating that he sustained a neck fracture and underwent a tracheotomy as a result of the accident. He stated that he remained admitted to Jamaica Hospital for six weeks and transferred to Mt Sinai for 4 months. Thereafter he was transferred to Rutland Nursing Home for long term care. Although submitted in his reply, two discharge summaries from the medical institutions where he received treatment corroborates the seriousness of his injuries. The records confirm hospital admissions beyond 90 days of the incident and long-term admission to Rutland Nursing Home for rehabilitative treatment. Indeed, he remained at Rutland until March 21, 2022. Based on the incapacitation of the petitioner, the court finds that a reasonable excuse for the late filing of the notice of claim has been established.
Next is an inquiry as to whether the City had actual knowledge of the essential facts constituting the claim. "'The most important factor based on its placement in the statute and its relation to other relevant factors is whether the [municipal] 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' (Matter of Lugo v. GNP Brokerage, 185 A.D.3d 824, 825 [2d Dept 2020], quoting Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 880 [2d Dept 2017])." Joseph v City of New York, 208 A.D.3d 1324 [2d Dept 2022]. "While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance'" (Matter of Snyder v. County of Suffolk, 116 A.D.3d 1052, 1053 [2d Dept 2014], quoting Matter of Placido v. County of Orange, 112 A.D.3d 722, 723 [2d Dept 2013])." Wieman-Gibson v County of Suffolk, 206 A.D.3d 666 [2d Dept 2022]. In order for a municipality to have actual knowledge of the essential facts constituting the claim, "[it] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim" (Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148 [2d Dept 2008]). Matter of Ruiz v City of New York, 154 A.D.3d 945, 946 [2d Dept 2017]. "Unsubstantiated contentions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the content of reports and other documentation are insufficient (see Humsted v. New York City Health and Hosps. Corp., 142 A.D.3d 1139, 1140 [2d Dept 2016])." Matter of Ruiz v City of New York, 154 A.D.3d 945, 946 [2d Dept 2017]; see also, Parker v City of New York, 206 A.D.3d 936 [2d Dept 2022].
Here, the petitioner did not establish that the City had actual notice of any claims relating to the civil rights claims, i.e. false arrest, false imprisonment, malicious prosecution and negligent hiring claims. Additionally, the City did not acquire actual knowledge of the essential facts constituting any of the petitioners' civil rights claim within the 90-day statutory period or a reasonable time thereafter. "The direct involvement of the respondents' employee in the accident itself, without more, is not sufficient to establish that the respondents acquired actual notice of the essential facts constituting the claim (see Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 881 [2d Dept 2017]; Matter of Thill v. North Shore Cent. Sch. Dist., 128 A.D.3d 976 [2d Dept 2015]). Vincent v City of New York, 208 A.D.3d 589, 596-597 [2d Dept 2022]. Here, even assuming the City was involved in a chase that resulted in the motor vehicle accident (as plaintiff alleges), the incident itself and/or ensuing reports do not give notice to the City of essential facts constituting claims sounding in false arrest, malicious prosecution, negligent hiring, etc.
Indeed, "the mere alleged existence of reports and other records... without evidence of their content, is insufficient to impute actual knowledge" to the respondents (Etienne v. City of New York, 189 A.D.3d 1400, 1402 [2d Dept 2020]; see Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1000 [2d Dept 2017])." Vincent v City of New York, 208 A.D.3d 589, 597 [2d Dept 2022]. The reports submitted herein by both sides fail to establish actual notice as to these claims. "[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation. (Matter of Fethallah v. New York City Police Dept., 150 A.D.3d at 1000, [internal quotation marks omitted])." Nunez v Vil. of Rockville Ctr., 176 A.D.3d 1211, 1214-1215 [2d Dept 2019]. The involvement of police effectuating an arrest pursuant to an open warrant did not, without more, establish that the City acquired actual knowledge of the essential facts constituting the petitioner's civil rights claims within 90 days following their accrual, or a reasonable time thereafter. See Matter of Islam v. City of New York, 164 A.D.3d 672, 674 [2d Dept 2018]; Matter of Ruiz v. City of New York, 154 A.D.3d at 946 [2d Dept 2017]; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d at 1000); Nunez v Vil. of Rockville Ctr., 176 A.D.3d at 1214-1215 [2d Dept 2019]. Furthermore, although an accident investigation conducted by the NYC Police Department explored petitioner's collision, the contents of those reports do not contain facts from which it can be readily inferred that a potentially actionable wrong had been committed by the City. Clarke v Veolia Transportation Services, Inc., 204 A.D.3d 666 [2d Dept 2022]; Durand v. MV Transp., Inc., 186 A.D.3d 564 [2d Dept 2020]; Matter of Fethallah v New York City Police Dept., supra; Parker v City of New York, supra. Therefore, the court finds that the City did not have actual notice of the petitioner's claims for civil rights violations, which include but are not limited to: false arrest, assault, battery excessive force, illegal search and seizure, negligent hiring, retention and supervision, etc.
As to the negligence/personal injury claim, it is noted that the police department conducted an investigation as to its involvement, if any, in the accident. These reports do support petitioner's contention that, within a few weeks (if not days) of the accident, the City acquired actual notice of a possible personal injury/negligence claim against the Police Department, allegedly as a result of a pursuit. The department's investigation as to the cause of the accident provides essential facts underlying the petitioner's claim of negligence.
The police investigation included questioning witnesses. Particularly, in a report dated 6/21/21 (six days post-accident) a police investigator noted that they
"specifically asked... if there were any vehicles traveling in proximity of the blue car. Her response was no. To reiterate, I asked if there was any possibility that this vehicle was either racing another vehicle or being chased by any vehicle, including police vehicles" (Emphasis added). (NYSCEF No. 21).
Additionally, in another report about an interview with witness "Chris," the investigator indicated,
"I asked Chris if there were any other vehicles traveling in proximity of the blue car and he stated no. To reiterate, I specifically asked Chris if he observed any vehicles, including police vehicles, following or chasing the blue vehicle. He responded that he was certain there were no other vehicles traveling southbound, following the blue vehicle." (Emphasize added). (NYSCEF #20).
"[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation. (Matter of Taylor v County of Suffolk, 90 A.D.3d 769, 770 [2011])." Matter of Fethallah v New York City Police Dept., 150 A.D.3d at 1000. Here, the Petitioner claims that his injuries were a result of the carelessness and negligence of police during a chase. The police investigated the accident to the extent of exploring the possibility of police involvement in an alleged chase that plaintiff claims caused and/or contributed to the accident. Information sufficient for the City to investigate the claim was obtained for these reports which were drafted within days of the accident.
Additionally, the extent of plaintiff's injuries was also stated in the accident report. It noted that "(a)s a result of the collision the operator of vehicle 1 did sustain head trauma and internal injuries and was transported to Jamaica Hospital via E.M.S. and was listed in critical condition." (NYSCEF #5).
The Second Department holds that "[t]he fact that the New York City Police Department had knowledge of this accident, without more, cannot be considered actual knowledge by the municipal defendants of the essential facts underlying the claim against them (see Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d 729, 731 [2d Dept 2018]; Matter of Klass v. City of New York, 103 A.D.3d 800, 801 [2d Dept 2018]; Hardayal v. City of New York, 281 A.D.2d 593 [2d Dept 2001])." Durand v MV Transportation, Inc., 186 A.D.3d 564, 565-566 [2d Dept 2020]. This holding refers generally to the insufficiency of accident reports to form the basis for actual notice. However, in this matter the investigation went beyond the mere filing of an accident report. Here witnesses were interviewed and questioned as to the circumstances of the car crash and possible police involvement in the accident. Video surveillance was also obtained. While an accident report by itself does not convey actual notice to the City, this accident report is in addition to the other findings of the investigation. Here, the collective information obtained in the investigation outlines the essential facts underlying the claim. Based on these circumstances, the court finds that petitioner established that the City had actual notice of the negligence claim within 90 days of the occurrence.
Petitioner bears the initial burden to show that a late notice of claim will not substantially prejudice the City. "[A] showing [of prejudice] need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice" Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466); Matter of Ruiz v City of New York, 154 A.D.3d at 947 [2d Dept 2017]). In this matter, petitioner argues that since the City received actual notice of the claims, it has not been prejudiced. The court agrees with petitioner's contention but only as to the negligence claims, as discussed above. However, there is no showing that the City would not be prejudiced as to all the civil rights claims.
The City argues that the conclusions from its investigation serve as evidence that petitioner's claims are meritless and seeks denial of this motion on that basis. However, the court finds that, at this point, that conclusion cannot be established. This is not a summary judgment motion and it is not petitioner's burden to address the merits of his claims at this juncture. Late notice of claim motions denied for lack of merit are generally those wherein the wrong party was sued or are based on other such clearly defined issues of law. Here, the City's argument is based on questions of fact. The court will not make such a ruling as part of this late notice of claim motion.
Lastly, Petitioner's request for pre-action discovery is denied and the request to hold a 50-h hearing is moot.
In accordance with the above, petitioner's motion to deem a late notice of claim timely, nunc pro tunc, is granted to the extent of deeming the notice of claim timely only as to claims for personal injury sounding in negligence. All claims based on violations of civil rights including but not limited to false arrest, malicious prosecution, excessive force, negligent hiring etc. are late and the motion is denied as to these.
This constitutes the decision and order of the court.