Opinion
No. 711418/16.
04-18-2017
Clifton SALVODON, Petitioner, v. The CITY OF NEW YORK, New York City Police Department, Detective Robert Lashinsky, Detective Brock, Officer Wolfer, Officer Hamilton, Detective Christopher Drew, Detective William Davis, Detective Kim Andrews and Detective Daab, Respondents.
Lawrence Duran, Esq., New York, Attorney for Petitioner. Gia Rose DiCola, Esq., Zachary W. Carter, Corporation Counsel, New York, Attorney for Respondents.
Lawrence Duran, Esq., New York, Attorney for Petitioner.
Gia Rose DiCola, Esq., Zachary W. Carter, Corporation Counsel, New York, Attorney for Respondents.
KEVIN J. KERRIGAN, J.
The following papers numbered 1 to 6 read on this petition for leave to serve and file a late notice of claim.
| Papers/ | Numbered |
| Notice of Motion–Petition–"Untabbed" Exhibits | 1–3 |
| Affirmation in Opposition | 4 |
| Reply | 6 |
Upon the foregoing papers it is ordered that the petition is decided as follows:
As a preliminary matter, since an action has not been commenced but only a special proceeding for leave to serve a late notice of claim, such proceeding had to be brought by either a notice of petition and petition or by order to show cause and petition, not by notice of motion. Nevertheless, since the parties are denominated as "Claimant" and "Respondents" and the application is supported by a petition, and since the prior petition commenced in the Supreme Court, New York County, was brought by notice of petition, this Court deems the designation "Notice of Motion" in the present application to have been an inadvertence and, therefore, the notice of motion is deemed a notice of petition.
Application by petitioner for leave to serve a late notice of claim, pursuant to General Municipal Law § 50–e(5), is denied.
Petitioner was arrested on November 20, 2007 at Franklin General Hospital in Nassau County by the NYPD for attempted murder, burglary, robbery, assault and criminal possession of stolen property stemming from a home invasion burglary/robbery in Queens County on said date in which two men brandishing guns entered the victim's home demanding money from the occupants. A ring was taken from one of the homeowner's guests before the intruders fled after the homeowner shot one of them.
The Nassau County Police Department was notified of the burglary/robbery that occurred and thereafter, a Nassau County Detective received a telephone call from Nassau County police officers who were called to Franklin Hospital informing that a male was brought in with a gunshot wound. Upon arrival, the Nassau detective was handed a plastic bag containing the individual's personal belongings, which included a ring and a cell phone. It was hospital personnel who had initially taken the personal belongings of the individual after he was admitted and it was they who gave the bag containing them to the police. The Nassau detective accessed the cell phone in an attempt to locate contact numbers for next of kin, and it was during this attempt that the detective was apprised by another detective at the police precinct to whom he had transmitted the various contact names and telephone numbers that the individual had given him a false name. A detective from the 105th Police Precinct in Queens County who was dispatched to the hospital was shown the items by the Nassau detective that were recovered from petitioner, and the Queens detective photographed them with his cell phone and sent the images to another detective at the 105th Precinct. The victim of the robbery whose ring had been taken identified the ring in the photo as his ring.
Based upon the information contained in petitioner's cell phone and his possession of the ring, which the victim of the robbery identified as his ring that was taken in the robbery, petitioner was arrested, indicted by a grand jury, and tried. Petitioner's omnibus motion to suppress evidence, including the ring, cell phone and information obtained from his cell phone, was denied by the Trial Court. The trial ended in a mistrial, and plaintiff was tried a second time, which resulted in a conviction on June 18, 2012. Petitioner represents that he served five years of a twenty-year sentence before being set free on October 27, 2015 as a result of the vacatur of his conviction by the Appellate Division, Second Department.
After his conviction, petitioner appealed the Trial Court's denial of his motion to suppress. Pursuant to the order of the Appellate Division, Second Department, issued on April 29, 2015 (People v. Salvodon, 127 AD3d 1239 ), the order of the Supreme Court was reversed and a new trial was ordered. The Appellate Division held that the search of petitioner's belongings violated his Fourth Amendment rights and, therefore, the motion to suppress should have been granted. The Office of the Queens District Attorney did not choose to re-try petitioner. Although the City's counsel, in her affirmation in opposition, comments that petitioner was not tried a third time "[f]or reasons that are neither set forth nor explained", this Court notes that the Appellate Division also held that the denial of the motion to suppress was not harmless error because "the evidence of the defendant's guilt, without reference to the ring or the information obtained from the defendant's cell phone, was not overwhelming", thus indicating that the decision not to re-try petitioner was based upon the determination that a conviction would not be likely in the absence of the suppressed evidence. The certificate of disposition dated November 4, 2015 indicates that all charges against petitioner were dismissed on October 27, 2015.
Petitioner's counsel commenced a special proceeding for leave to serve a late notice of claim on March 28, 2016 in the Supreme Court, New York County, by filing and serving a notice of petition and petition upon respondents (Index No. 152612/16). The petition was fully submitted on July 18, 2016. Pursuant to her order issued on August 9, 2016, Justice Margaret A. Chan, sua sponte, transferred venue of the "matter" to Queens County and marked the petition "case disposed". All of the pleadings and papers were thereafter transferred to the Queens County Clerk. Petitioner then commenced another special proceeding for leave to serve a late notice of claim in the Supreme Court, Queens County, by filing and serving the instant notice of "motion" and petition, on February 22, 2017.
The proposed notice of claim annexed to the instant petition asserts causes of action for false imprisonment and malicious prosecution. It also asserts unspecified "other Constitutional claims due to Constitutional violations". However, claims for violation of Constitutional rights is not subject to the notice of claim requirement and, thus, need not be addressed by this Court on the present petition for leave to serve a late notice of claim.
A condition precedent to commencement of a tort action against a municipality or public corporation is the service of a notice of claim upon the municipality or public entity within 90 days after the claim arises (see General Municipal Law § 50–e[1][a] ; Williams v. Nassau County Med. Ctr., 6 NY3d 531 [2006] ). A cause of action for false arrest/unlawful imprisonment accrues on the date the petitioner is released from physical custody (see Ragland v. New York City Housing Authority, 201 A.D.2d 7 [2nd Dept 1994] ). A cause of action for malicious prosecution does not accrue until the petitioner has been acquitted of the subject charges (see Guzman v. City of New York, 236 A.D.2d 444 [2nd Dept 1997] ).
An extension of time to serve a late notice of claim "shall not exceed the time limited for the commencement of an action by the claimant against the public corporation" (General Municipal Law § 50–e[5] ). The statute of limitations for commencement of an action against the City is one year and 90–days from the date of accrual of petitioner's causes of action (see General Municipal Law § 50–i ).
With respect to petitioner's claim for malicious prosecution, such cause of action ostensibly accrued on October 27, 2015 when all charges against him were dismissed. Therefore, petitioner had until January 25, 2017 to seek leave to serve a late notice of claim with respect to his claim for malicious prosecution. Petitioner timely sought leave to serve a late notice of claim in the Supreme Court, New York County, five months and one day later, on March 28, 2016. For the reasons stated herein, infra, this Court, in the interest of justice, calculates the timeliness of petitioner's instant application for leave to serve a late notice of claim upon the March 28, 2016 date of filing of his original notice of petition and petition.
But even if, arguendo, the timeliness of this application were to be based upon the date when the instant petition was filed on February 22, 2011, the application for leave to serve a notice of claim asserting a claim for malicious prosecution would still be timely. Petitioner's time to file a notice of claim was tolled from the date of filing of his original application on March 28, 2016 until the entry of the order of Justice Chan disposing of the petition on August 11, 2016. The instant application for leave to serve a late notice of claim was filed six months and 11 days later, on February 22, 2017. Therefore, the instant petition for leave to serve a late notice of claim, brought one year and 42 days after accrual of petitioner's cause of action for malicious prosecution, was timely with respect to his claim for malicious prosecution.
Petitioner's counsel apprises that Justice Chan ruled that proper venue of the "motion" was in Queens County and states that the "motion" was officially transferred to Queens County and a new Index Number was given. However, this Court notes that although the original notice of petition and petition was transferred to the file of the Queens County Clerk, it is not the notice of petition and petition before this Court. The instant notice of petition (erroneously denominated a notice of motion) and petition is a new special proceeding filed and served on February 22, 2017. Nevertheless, this Court will deem the commencement date of the instant petition as March 28, 2016
This Court does not fault petitioner's attorney or penalize him for the apparent confusion ensuing from the actions of the Supreme Court, New York County, in not determining his application for leave to serve a late notice of claim but sua sponte transferring it to Queens County.
Venue under CPLR 501, et. seq., including CPLR 504 concerning cases where the City is a defendant, relates only to the place of trial of an action. Indeed, CPLR 504 sets forth the rules for the "place of trial of all actions against ... the City of New York", and CPLR 510, the change of venue provision, sets forth the grounds for change of "the place of trial of an action". It thus has no application to motions or special proceedings not involving a trial. No action has been commenced by petitioner, only a special proceeding for leave to serve a late notice of claim. Thus, there is no case for venue to be transferred. The application for leave to serve a late notice of claim is not an action the place of trial of which could be transferred. It is merely an application for permission to serve a notice that is a condition precedent to commencement of an action. Moreover, even had petitioner commenced an action in New York County, pursuant to CPLR 509 and 510, a court may only transfer venue of an action upon motion or consent. "[I]n the absence of a motion or consent, the court had no authority to sua sponte change venue" (Travelers Indemnity Co. of Illinois v. Nnamani (286 A.D.2d 769, 769 [2nd Dept 2001] ). The City did not move to change venue, and there is no indication in the record that respective counsel stipulated to change venue, quite simply because there was no pending case to be transferred.
Thus, the application for leave to serve a late notice of claim brought in the Supreme Court, New York County, could not be transferred to the Supreme Court, Queens County, pursuant to CPLR 504 and pursuant to the change of venue provision of CPLR 510. To the extent that the application for leave to serve a late notice of claim has been transferred sua sponte to this Court pursuant to CPLR 504, this Court may not recognize such transfer of "venue" of petitioner's application to serve a late notice of claim. In any event, however, as heretofore noted, petitioner is not proceeding before this Court on his original petition "transferred" from the Supreme Court, New York County, but on his new petition filed in the Supreme Court, Queens County.
In light of the foregoing, therefore, this Court, in the interest of justice, considers March 28, 2016 as the date upon which the timeliness of petitioner's instant application should be calculated.
Thus, petitioner's application for leave to serve a late notice of claim for malicious prosecution is timely. However, his application for leave to serve a late notice of claim insofar as it seeks to assert a claim for unlawful imprisonment, is untimely. As noted, an application for leave to serve a late notice of claim must be brought within the period of limitation for commencement of an action against the City, which is one year and 90 days from the date of accrual of petitioner's claim, and a claim for false arrest and unlawful imprisonment accrues upon petitioner's release from physical custody.
Petitioner's counsel does not inform when petitioner was released from custody after his arrest but only states in the petition that his "false arrest and imprisonment ... occurred on November 20, 2007 and subsequent malicious prosecution ... terminated on October 27, 2015". The only other statement made in the petition concerning petitioner's confinement is, "The Claimant was set free after serving five years of a twenty year sentence. Claimant spent five humiliating, fearful and disgraceful years of incarceration."
In opposition, the City argues that the application is untimely because, notwithstanding that petitioner has refused to set forth the date when he was arraigned, when bail was set and when he was released from physical custody, and the City could not ascertain this information independently because petitioner's criminal file was sealed and petitioner has not granted the City permission to access this information, and therefore it is not possible to ascertain the exact date when he was released from physical custody, the allegation of the petition that he was incarcerated for five years prior to the date of his release on October 27, 2015 must be interpreted as an allegation that he was only in custody commencing in 2010 and was not in custody prior to that year and, thus, that the notice of petition and petition filed on March 28, 2016 was well beyond the one year and 90–day statute of limitations.
In reply, petitioner's counsel, again evades any mention of when petitioner was released from physical custody after his arrest but merely argues that it did not matter when he was physically released from custody because he "still had charges pending against him, regardless of whether he was actually incarcerated or out on bail at this time while he waited for a verdict in his pending litigation." He further argues that since petitioner was "then convicted at which point he was once again falsely imprisoned in 2012", therefore, "Petitioner's claim clearly had not begun to accrue at least until his case was adjudicated and he was again falsely imprisoned". Counsel thereupon represents that petitioner was released from custody in June 2015 and contends that the cause of action for false arrest/unlawful imprisonment accrued in June 2015.
This argument is entirely without merit, since even petitioner's counsel concedes in the petition that petitioner's cause of action for false arrest/unlawful imprisonment accrued on the date when he was released from physical custody. He cites no authority whatsoever for the proposition that a cause of action for false arrest/imprisonment does not accrue while the charges against petitioner are still pending.
Petitioner's counsel's further representation that petitioner served five years of a twenty-year sentence that was imposed, until his release in June 2015, is patently false since petitioner was not convicted and sentence was not imposed until June 18, 2012, which was only three years prior to his claimed date of release in June 2015. Moreover, the certificate of disposition of petitioner's criminal case, which his counsel annexes to the petition, indicates that his bail was exonerated, thus demonstrating that he was released from physical custody on bail after his arraignment. In this regard, this Court additionally notes that there is no indication, on this record, that a motion was made under CPL 30.30 for dismissal based upon speedy trial grounds, which means that petitioner was arraigned expeditiously after his arrest and released from physical custody on bail. Counsel did not deny that petitioner was released from physical custody on bail after arraignment and that he was not incarcerated until his conviction after his second trial but merely made the evasive statement, "From 2007 until 2012 the petitioner still had charges pending against him, regardless of whether he was actually incarcerated or out on bail at this time while he waited for a verdict in his pending litigation. He was then convicted at which point he was once again falsely imprisoned in 2012." This Court thus deems counsel's statements to be an admission that petitioner was released from physical custody on bail subsequent to his arraignment, which, in light of plaintiff's failure to seek dismissal under CPL 30.30, this Court deems to have taken place shortly after the date of his arrest on November 20, 2007.
Therefore, even deeming the date of commencement of this special proceeding to be March 28, 2016, the application for leave to serve a late notice of claim to assert a cause of action for false arrest/unlawful imprisonment is still untimely by at least several years beyond the expiration of the one year and 90–day statute of limitations.
Counsel's further attempt to obfuscate the Court by arguing that petitioner was falsely imprisoned in 2012 and by asserting a claim in his proposed notice of claim for unlawful imprisonment, but not false arrest, in an apparent attempt to obscure the arrest and attendant confinement which occurred in 2007 and to focus upon the irrelevant imprisonment after conviction, is unavailing. Petitioner's imprisonment in 2012 was imposed as a result of a guilty verdict by a jury after trial and the imposition of sentence by the Court, and is not the confinement that is the subject of an unlawful imprisonment claim against the City, which is the confinement attending the arrest by the NYPD. A claim of false imprisonment is part and parcel of a claim for false arrest, since it is the confinement attending the arrest, such that no separate claim of false imprisonment exists and survives the granting of summary judgment dismissing a claim of false arrest (see e.g. Martinez v. City of Schenectady, 97 N.Y.2d 78 [2001] ). Indeed, false arrest and unlawful imprisonment are functionally synonymous, the distinction being merely semantic; "False arrest is largely synonymous with false imprisonment. An action for false imprisonment lies against one who has unlawfully arrested or seized, and detained, another. The gist of the action is the unlawful detention" (Jaques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 473 [1972] ).
After petitioner was convicted and sentenced, he was not imprisoned as a result of the arrest, but as a result of the intervening act of the jury in rendering a guilty verdict at trial and of the trial court that imposed sentence and remanded him into custody and which denied petitioner's omnibus motion to suppress the physical evidence and vacate the jury verdict. After his arrest and, apparently, after a brief confinement until arraignment, petitioner was released from physical custody on bail pending his trial. His first trial ended in a mistrial and he was tried again. The period of his imprisonment after his conviction in 2012 following his second trial thus was removed by several years from whatever brief period of confinement he underwent in 2007 as a result of his arrest. His first detention pending his arraignment and release from physical custody on bail was what attended and was part of his arrest, which he claims was false or unlawful. Moreover, his imprisonment after his conviction in 2012 was not unlawful since it was as a result of the imposition of sentence by the Court after a trial and conviction by a jury. Therefore, this imprisonment pursuant to his sentence cannot be the imprisonment underlying a claim of unlawful imprisonment against the City for the acts of the NYPD in arresting him.
Petitioner's application for leave to serve a late notice of claim asserting unlawful imprisonment is thus untimely and must be dismissed outright.
Even if, arguendo, petitioner's application for leave to serve a late notice of claim asserting a claim for unlawful imprisonment were timely, it still must be denied substantively, as must his application for leave to serve a late notice of claim asserting malicious prosecution.
The determination to grant leave to serve a late notice of claim lies within the sound discretion of the court (see General Municipal Law § 50–e[5] ; Lodati v. City of New York, 303 A.D.2d 406 [2d Dept.2003] ; Matter of Valestil v. City of New York, 295 A.D.2d 619 [2d Dept.2002], lv denied 98 N.Y.2d 615 [2002] ). In determining whether to grant leave to serve a late notice of claim, the court must consider certain factors, including, inter alia, whether the claimant has demonstrated a reasonable excuse for failing to timely serve a notice of claim, whether the municipality acquired actual knowledge of the facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the municipality is substantially prejudiced by the delay (see Nairne v. N.Y. City Health & Hosps. Corp., 303 A.D.2d 409 [2d Dept.2003] ; Brown v. County of Westchester, 293 A.D.2d 748 [2d Dept.2002] ; Perre v. Town of Poughkeepsie, 300 A.D.2d 379 [2d Dept.2002] ; Matter of Valestil v. City of New York, supra; see General Municipal Law § 50–e[5] ).
Petitioner has failed to proffer a cognizable excuse for his failure to serve a timely notice of claim. Petitioner alleges in his petition that he was unaware of the 90–day notice requirement and that although he consulted with an attorney (not current counsel), that attorney took over one month to review the case, during which time the notice of claim period expired, and then informed petitioner that he would not take the case, without apprising petitioner of the notice of claim deadline or attempting to file a notice of claim on his behalf.
Ignorance of the law regarding the necessity of filing a timely notice of claim does not constitute a reasonable excuse as a matter of law (see Felice v. Eastport/South Manor Central School Dist., 50 AD3d 138 [2nd Dept 2008] ; Anderson v. City University of New York, 8 AD3d 413 [2nd Dept 2004] ). Moreover, to the extent that petitioner complains of the delay by the first attorney he consulted to review the file and his failure to file a notice of claim on his behalf before expiration of the 90–day time period, law office failure does not constitute a reasonable excuse for the failure to serve a timely notice of claim (see Belenky v. Nassau Community College, 4 AD3d 422 [2nd Dept 2004] ; Baglivi v. Town of Southold, 301 A.D.2d 597 [2nd Dept 2003] ; King v. New York City Housing Authority, 274 A.D.2d 482 [2nd Dept 2000] ). Therefore, any delay in seeking leave to file a notice of claim attributable to the failings of the first attorney petitioner consulted does not constitute a reasonable excuse as a matter of law.
Petitioner also avers that the 90–day period for filing a notice of claim expired during the period of over one month from the time he consulted with the first attorney to the time that attorney declined to represent him. Petitioner fails to state when he consulted with this first attorney. However, petitioner's attorney contends in the petition that petitioner had until January 25, 2016 to file a notice of claim for both his unlawful imprisonment and malicious prosecution claims, based upon an accrual date for both claims of October 27, 2015, the date the criminal case was dismissed. Since counsel represents that petitioner first consulted with the attorney over one month before the expiration of the 90–day period, which this Court interprets to mean more than one month but less than two months, then he would be claiming that he first consulted with the attorney between November 26, 2015 and December 25, 2015. Since as heretofore noted petitioner's claim for unlawful imprisonment accrued no later than 2007, the alleged failures of the first attorney who was not consulted until years after the 90–day deadline for filing a notice of claim had expired with respect to his claim for unlawful imprisonment, had no bearing on petitioner's failure to serve a timely notice of claim.
Alternatively, petitioner's counsel contends in his reply that petitioner's cause of action for unlawful imprisonment accrued when he was released from custody on some unspecified date in June 2015. Therefore, based upon counsel's alternative contention, the 90–day period for filing a notice of claim would have expired, according to petitioner, on some date in September 2015. Since he avers that he first consulted with the attorney over one month before the expiration of the 90–day period, this would mean that he first consulted with the attorney in July–August 2015, which is still years after the expiration of the actual 90–day deadline as measured from an accrual year of 2007.
In any event, as heretofore noted, petitioner has failed to show proof or aver when he was released from physical custody immediately after his arrest. Therefore, he has failed to proffer a reasonable excuse for his delay.
With respect to his claim for malicious prosecution that undisputably accrued on October 27, 2015, as stated, ignorance of the law concerning the 90–day notice requirement and law office failure are not cognizable excuses as a matter of law.
Petitioner also contends that he was involved in an automobile accident on December 14, 2015 in which his vehicle was totaled and he sustained personal injuries. He contends that he was unable to file a notice of claim in a timely fashion due to his injuries and the financial setback caused by the damage to his vehicle. In this regard, since petitioner admittedly consulted with an attorney to bring suit during the period he contends was within the 90–day deadline, whether or not he had a motor vehicle accident during this same period is irrelevant to his ability to file a timely notice of claim, since he stated that he in fact did take steps to do so within the 90–day deadline but the attorney neglected to act in a timely manner. In any event, his claim that he was unable to file a timely notice of claim because of his injuries is unsupported by an affirmation of a physician and, therefore, may not be considered. Furthermore, this Court does not consider his claim of financial hardship caused by the damage to his vehicle a reasonable excuse for his failure to serve a timely notice of claim. Indeed, his averment that he consulted with and sought to retain an attorney prior to the date he contends was the expiration date for filing a 90–day notice belies his claim that he was unable to file a notice of claim timely because of financial hardship.
Petitioner has also failed to demonstrate that the City acquired actual knowledge of the essential facts constituting the claim within the statutory period or a reasonable time thereafter.
Counsel claims that the City acquired actual knowledge by virtue of the acts of the police themselves in arresting petitioner based upon their unlawful search of his personal belongings in violation of his Fourth Amendment rights and the police reports.
This Court notes that actual knowledge may be imputed to the City where the Police Department participated in the acts giving rise to the petitioner's claim of false arrest, imprisonment and prosecution, but only if other factors are present, such as the timely filing of police reports, the conduction of investigations and where there was a reasonable excuse for the delay and lack of prejudice (see Ragland v. NYC Housing Auth., 201 A.D.2d 7 [2nd dept 1994] ; McKenna v. City of New York, 154 A.D.2d 655 [2nd Dept 1989] ). If actual knowledge of the facts underlying the claim could be imputed to the municipality merely because an arrest, detention and prosecution may be characterized as intentional acts on the part of the police officers, then the notice of claim requirement would effectively be non-existent in any claim asserting false arrest, false imprisonment and malicious prosecution. Counsel's reliance upon cases from the First Department in support of his position, to the extent that counsel suggests that such cases stand for the proposition that actual knowledge of the police officer himself of his own actions constitutes actual knowledge to the City, is not the law in the Second Department (see Black v. City of New York, 2008 N.Y. Slip Op 52118[U][Supreme Ct, Kings County] ).
In addition, no police reports or investigations conducted within the statutory period or a reasonable time thereafter indicating any negligent or wrongful acts by the NYPD are proffered to establish any actual knowledge on the part of the City (see e.g. Doyle v. Elwood Union Free School Dist., 39 AD3d 544 [2nd Dept 2007] ; Henriques v. City of New York, 22 AD3d 847 [2nd Dept 2005] ). Indeed, petitioner was indicted, convicted and sentenced based, in part, upon the actions of the NYPD, and petitioner's motion to suppress the physical evidence that was the basis of his prosecution was denied by the trial court. Therefore, there is no basis to find that the City had actual knowledge of the essentials of petitioner's claims of unlawful imprisonment and malicious prosecution within 90–days of accrual of those claims. Moreover, with respect to the individual respondent Detectives, there is no showing that they were aware that their examination of the ring and cell phone provided by the hospital was in any way Constitutionally infirm, a determination that was not made until the issue was determined by the Appellate Division, Second Department, on April 29, 2015, approximately seven and one-half years after petitioner's arrest. Therefore, there has been no showing that the respondent detectives had actual knowledge that their reliance upon the physical evidence provided by the hospital and the arrest of petitioner based upon that evidence would, or could possibly, lead to a claim of false arrest and malicious prosecution.
Petitioner also alleges that respondents would not be prejudiced by late service of a notice of claim. This Court may not reach the issue of prejudice, since even if there were none, it would be an abuse of discretion to grant the instant motion where petitioner has failed to demonstrate either that there was a reasonable excuse for his failure to timely file a notice of claim or that respondents acquired actual knowledge of the facts constituting the claim within the statutory 90–day period or a reasonable time thereafter (see Carpenter v. City of New York, 30 AD3d 594 [2nd Dept 2006] ; State Farm Mut. Auto. Ins. Co. v. New York City Transit Authority, 35 AD3d 718 [2nd Dept 2006] ).
In any event, petitioner has failed to show that respondents would not suffer prejudice by the delay. It is the burden of the claimant seeking leave to serve a late notice of claim to show lack of prejudice (see Felice v. Eastport/South Manor Central School Dist., 50 AD3d 138 [2nd Dept 2008). Petitioner's contention that respondents would suffer no prejudice is based upon his unmeritorious argument that they acquired timely actual knowledge of the facts underlying petitioner's claims by virtue of the acts of the detectives themselves.
Thus, this Court finds that it would be an improvident exercise of its discretion to grant petitioner's application for leave to serve a late notice of claim without an adequate excuse by counsel for the delay, and absent the receipt by the City of timely actual knowledge of the facts constituting petitioner's claim (Jasinski v.. HB Ward Tech. Sch., 306 A.D.2d 347 [2d Dept.2003] ; Cordero v. County of Nassau, 2 AD3d 567 [2d Dept.2003] ; Gomez v. City of New York, 250 A.D.2d 443 [1st Dept 1998] ).
Finally, although the courts should not ordinarily delve into the merits in determining an application for leave to serve a late notice of claim, the Court may deny leave to serve a late notice of claim where the claim is patently meritless, as it would make no sense to grant leave to serve a notice of claim under such circumstances (see Besedina v. New York City Transit Authority, 47 AD3d 924 [2nd Dept 2008] ; Katz v. Town of Bedford, 192 A.D.2d 707 [2nd Dept 1993] ).
Petitioner's unlawful imprisonment claim is unmeritorious since it is untimely. In addition, even were it timely, a finding of probable cause operates as a complete defense to such cause of action (see Carlton v. Nassau County Police Dept., 306 A.D.2d 365 [2nd Dept 2003] ). This Court finds, on this record, based upon the undisputed facts presented, that there was ample probable cause to arrest and detain petitioner, notwithstanding that it was subsequently determined by the Appellate Division, Second Department, that the physical evidence obtained from petitioner without his consent was a violation of the Fourth Amendment and should have been suppressed.
Although the Appellate Division, Second Department, reversed the order of the Trial Court denying petitioner's motion to suppress the physical evidence and ordered a new trial, such finding had nothing to do with the question of whether the police had, and it was not a determination that the police lacked, probable cause to arrest and detain petitioner. It was merely a finding that the physical evidence of petitioner's guilt should not have been presented to the jury since it was obtained in contravention of petitioner's Fourth Amendment rights, and that to the extent that there was no overwhelming evidence of petitioner's guilt apart from the ring and the other evidence obtained from the cell phone, petitioner was entitled to a new trial. It was not a finding that the police lacked probable cause to arrest and detain petitioner.
An indictment by a grand jury constitutes presumptive probable cause for an arrest and detention, probable cause meaning "probable cause to believe that the suspect committed the crime ... [which presumption] may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, (or) that they have withheld evidence or otherwise acted in bad faith" (Williams v. City of New York, 114 AD3d 852, 853–854 [2nd Dept 2014], internal quotation marks and citations omitted).
There was no showing or allegation that the arresting detective or other police officers did not make a full and complete statement of facts to the Grand Jury or the District Attorney, that they misrepresented, falsified or withheld evidence or in some other manner acted in bad faith. Petitioner's only contention before the Appellate Division, Second Department, was that the victim homeowner lied about using petitioner's gun to shoot him, which fact the Appellate Division held was immaterial to the issue of whether there was a proper indictment. The Appellate Division held, "Contrary to the defendant's contention, the indictment was sufficiently supported by competent evidence ... Moreover, there was no suggestion that the prosecutor knew that the homeowner's testimony was false at the time it was given" (127 AD3d at 1241, citations omitted). Since the Appellate Division, Second Department, held that petitioner's indictment was proper and was not procured through prosecutorial misconduct, the presumption of probable cause to arrest and detain petitioner created by his indictment was not overcome, and thus petitioner is now collaterally estopped from asserting that the NYPD lacked probable cause to arrest and detain him.
Petitioner's remaining claim for malicious prosecution is also patently unmeritorious, since his indictment by the Grand Jury and the determination of the Appellate Division, Second Department, that the indictment was supported by competent evidence and not procured by prosecutorial misconduct, which issue petitioner is now barred by the doctrine of collateral estoppel from disputing, also precludes a claim for malicious prosecution (see Williams v. City of New York, supra ).
Furthermore, besides the requirement of probable cause, in order to establish a cause of action for malicious prosecution petitioner would additionally have to demonstrate that the criminal case was prosecuted out of actual malice and that it was terminated in favor of petitioner (see id. ). Here, there was no showing, and the record on this petition and the criminal proceeding do not establish that the police were motivated by actual malice.
In addition, although a new trial was ordered and the Office of the District Attorney declined to try petitioner again, apparently in light of the unlikelihood of a conviction in the absence of the suppressed evidence, the resulting dismissal of the criminal case under those circumstances did not constitute a favorable termination of the criminal proceeding.
Indeed, in an analogous fact pattern, the Court of Appeals ruled that the vacatur by it of a defendant's felony drug conviction and dismissal of the indictment and criminal case against her that had been procured through the introduction of evidence obtained through a faulty search warrant, in violation of the Fourth Amendment, and which evidence the Court of Appeals suppressed, was not a favorable termination so as to support a malicious prosecution action. "A criminal defendant", explained the Court of Appeals, "has not obtained a favorable termination of a criminal proceeding where the outcome is inconsistent with the innocence of the accused. While a plaintiff need not prove actual innocence in order to satisfy the favorable termination prong of a malicious prosecution action, the absence of a conviction is not itself a favorable termination.... Plaintiff's felony conviction was reversed not because of her lack of culpability—indeed, her guilt was proven beyond a reasonable doubt—but because the evidence that formed the basis for her conviction was obtained pursuant to a faulty search warrant. There is plainly no favorable termination here for purposes of malicious prosecution" (Martinez v. City of Schenectady, 97 N.Y.2d 78, 84–85 [2001], citations omitted).
Likewise, in our case, petitioner's indictment was supported by competent evidence, and there is no dispute that he was found guilty beyond a reasonable doubt. Petitioner has not claimed innocence and has not disputed that the ring that was retrieved from him in the hospital belonged to one of the victims of the home invasion and that he in fact robbed the victim of that ring, and has not disputed that said ring, together with the evidence that was obtained from his cell phone (which evidence he has elected not to disclose to this Court), constituted evidence to support the jury's verdict of guilty beyond a reasonable doubt. Rather, a new trial was ordered, but, for want of that evidence, he was not re-tried, solely as a result of the ultimate suppression, on Fourth Amendment grounds, of the physical evidence that had been obtained by a warrantless search and seizure. Thus, the dismissal of the criminal case against him resulting from the District Attorney's decision not to try him again in the absence of the suppressed evidence, was not a favorable termination of the criminal proceeding against him that was consistent with his innocence. This Court further notes that in the Martinez case, the Court of Appeals found that there was no favorable termination so as to support a malicious prosecution claim, even though it dismissed the indictment and the case altogether, as opposed to our case where the indictment was upheld as supported by the evidence and merely a new trial was ordered, thus constituting an even more compelling set of facts demonstrating that the dismissal of the case was not a favorable termination and may not be construed as being consistent with a finding of innocence. Therefore, petitioner not only has failed to satisfy all of the elements necessary to set forth a cause of action alleging malicious prosecution, but has failed to satisfy any of the requirements.
For the foregoing reasons, the petition is dismissed. Respondents may enter judgment accordingly.