Opinion
Index No. 521854/2020 Mo. Seq. 002 NYSCEF DOC. No. 31
02-28-2023
BRENNAN SMITH, Petitioner. v. THE CITY OF NEW YORK Respondent.
Unpublished Opinion
Hon. Consuelo Mallafre Melendez. J.S.C.
Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 3, 17; 20-27; 28; 29-30
Petitioner seeks renewal or reargument of this court's Decision and Order dated February 17, 2022 denying a motion for leave to serve a late notice of claim.
"Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision (internal quotation marks omitted)". Maurisaca v. Bowery at Spring Partners, L.P., 168 A.D.3d 711 [2d Dept 2019].
"A motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' (CPLR 2221[e][2]) and 'shall contain reasonable justification for the failure to present such facts on the prior motion' (CPLR 2221[e][3]). 'The requirement that a motion for renewal be based on new facts is a flexible one' (internal citations omitted). The new or additional facts presented 'either must have not been known to the party seeking renewal or may, in the Supreme
Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion' (internal citations omitted). In either circumstance, however, the party seeking renewal must present 'a reasonable excuse for the failure to present those facts on the prior motion' (internal citations omitted)". Caronia v. Peluso, 170 A.D.3d 649 [2d Dept 2019].
Petitioner's motion to reargue is DENIED as the court has not overlooked or misapprehended an issue of law or fact. However, the motion to renew is Granted for the reason set forth herein and, upon renewal, the court adheres to its original decision Denying the late notice of claim motion.
Petitioner seeks renewal asking the court to consider Exhibit "A" filed as NYSCEF #17 and re-filed in support for this motion as Exhibit "A" under NYSCEF #25. Petitioner states that the document was filed in response to a request from the previously assigned judge, who heard argument on the motion on November 10, 2021. The previous court did not make a decision after the original oral argument rather, asked for supplemental papers and adjourned the motion to January 19, 2022. The undersigned was assigned to this Part on January 3, 2022, and heard final argument on January 19, 2022, the day after NYSCEF #17 was filed. This court does not accept sur-reply papers, letters, or other communication submitted relative to a motion beyond reply papers. Thus, NYSCEF #17 was not considered in the court's underlying determination. While this court has not changed its rule to not accept supplemental papers, given the prior judge's instruction and in the interest of justice, Exhibit "A" NYSCEF #17 (Exhibit "A" NYSCEF #25 herein) will be accepted herein as new evidence in support of Renewal. See, Weisse v. Kamhi, 129 A.D.2d 698 [2d Dept 1987]; Sciascia v. Nevins, 130 A.D.2d 649 [2d Dept 1987]. It is this court's ruling, however, that any other documents, exhibits, letters submitted in support of this motion to renew are not accepted as there is no showing that the other submissions consist of new evidence not available at the time of the original motion.
Petitioner brought forth this action to recover damages for personal injuries allegedly sustained on August 11, 2019. On or about November 13, 2019, Petitioner's criminal matter was resolved. In this matter, Petitioner filed a notice of claim stamped by the Comptroller's Office on January 28, 2020 about an incident on August 11, 2019. The notice of claim states: "Claim for false arrest, false imprisonment, unlawful search and seizure, assault and battery, malicious prosecution, retaliatory prosecution, conversation, willful destruction of property, denial of rights under Criminal Procedure Law §§ 140.20(7), 160.50 and 160.55, abuse of process, trespass, trespass to chattels, conversion, denial of proper medical care, intentional and negligent infliction of emotional distress, negligence, negligent hiring, screening, retention, supervision, and training, racial profiling in violation of the New York City Community Safety Act of 2013 (Local Law 71), violation of the New York State Human Rights Law, violation of the New York City Human Rights Law, violation of the New York Civil Rights Law, and violation of civil rights pursuant to the Constitution of the State of New York." See, NYSCEF #3. The motion for a late notice of claim was filed on November 5, 2020.
The Court has now reviewed and considered NYSCEF #17/#25 as part of the instant motion. The document dated October 7, 2019 purports to be a copy of a letter to petitioner which is partly cut off. The heading partially states that the sender is Housing Bureau Investigations Unit and bears the name and seal of the City of New York. According to the letter, "a thorough investigation has been completed regarding your complaint to the New York City Police Department (under Internal Affairs Bureau log number…) This case is now closed, with a finding of Exonerated, that is a statement to indicate that there was sufficient evidence to clearly prove that the employee was not involved in any misconduct; that the act(s) complained of did occur but were lawful and proper."
It is well established that "the mere alleged existence of reports and records, without evidence of their content, is insufficient to impute actual knowledge to the City. (See Etienne v. City of New York, 189 A.D.3d 1400, 1402 [2d Dept 2020]; Melcer v. City of New York, 185 A.D.3d 672, 674-675 [2d Dept 2020]; Matter of Degraffe v. New York City Tr. Auth., 160 A.D.3d 949, 950, [2d Dept 2018])." Parker v. City of New York, 206 A.D.3d 936, 938 [2d Dept 2022]. "Unsubstantiated and conclusory allegations that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient (see Humsted v. New York City Health & Hosps. Corp., 142 A.D.3d 1139, 1140 [2d Dept 2016]; Matter of Padgett v. City of New York, 78 A.D.3d 949, 950 [2d Dept 2010])." Parker, 206 A.D.3d at 938. Furthermore, the involvement of the City's police officers in the alleged incident does not, without more, establish that the City had actual knowledge of the essential facts constituting the petitioner's claims for, inter alia, false arrest and assault (see Etienne v. City of New York, at 1401-1402; Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214 [2d Dept 2019]; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1000 [2d Dept 2017])." Parker, 206 A.D.3d at 938.
It is also well established that in order for a municipality to have actual knowledge of the essential facts constituting a 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]; see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 911 [2d Dept 2017])". Parker, 206 A.D.3d at 938.
Here, nothing in the letter states the nature of Petitioner's complaint such that notice may be inferred upon the City. The letter does not give any indication of what claims petitioner made, what Petitioner complained of, or what acts the officers were allegedly involved in. It does not even mention basic information about the alleged circumstances surrounding the subject complaint. Although it states that an investigation was conducted, no details of the substance of the investigation is noted; not even a general description of the claims the bureau investigated is stated in the letter. It would be purely conjecture for this court to determine that the subject investigation delved into the claims that are stated in the notice of claim sufficient to substantiate a finding that the Respondents acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. Indeed, for 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 municipality or public corporation. Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, [2d Dept 2011]; Fethallah, 150 A.D.3d at 1000; Islam v. City of New York, 164 A.D.3d 672, 673-674 [2d Dept 2018]; Nunez v. Vil. of Rockville Ctr., 176 A.D.3d 1211 [2d Dept 2019].
It is the court's opinion that the letter fails to show that the City had knowledge that it committed a potentially actionable wrong. Indeed, the document clearly states that the claims were unsubstantiated.
Under the circumstances outlined herein, the court cannot find that the respondents acquired actual knowledge of the facts underlying the claim. Having accepted and evaluated NYSCEF # 17/#25 as aforementioned, the court adheres to its original decision which includes the analysis and evaluation of the other factors to be considered in a late notice of claim motion.
This constitutes the decision and order of the court.