Opinion
6795/09.
Decided on November 12, 2009.
Petitioner moves the Court by Order to Show Cause for leave pursuant to General Municipal Law 50-e to serve a late Notice of Claim, Nunc pro tunc, as if timely served.
Attorneys for petitioner were Miller Miller, Esqs, by Andrew Miller, Esq.
Attorney for the Respondent City of New York was Michael A. Cardozo, Corporation Counsel, by Simcha Baruch Rivkin, Esq.
Background
Petitioner Dawan Turner filed a notice of petition dated March 20, 2009, pursuant to General Municipal Law § 50-e, for an order granting him leave to file a late Notice of Claim against the City of New York, to include actions for false arrest, false imprisonment, malicious prosecution, violation of civil rights, intentional and negligent infliction of emotional distress and negligent hiring, training, supervision and retention sustained by petitioner.
The claims arise out of an arrest of petitioner, Dawan Turner, on December 21, 2007. Petitioner was held in prison for several days charged with assault, robbery, and menacing. Petitioner, then an infant seventeen (17) years of age, was detained, indicted and thereafter continually prosecuted under Indictment Number 12738/07, until January 9, 2009, when the case against the petitioner was dismissed. The instant petition requesting judicial intervention for the late filing was made on March 20, 2009 — one year and eighty-five days after the claim for false arrest arose. The claim of malicious prosecution arose on January 9, 2009, and thus, has been timely filed as the 90-day statutory period did not end until April 9, 2009.
A Court in its discretion may extend the time under GML § 50-e to serve a Notice of Claim. In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely Notice of Claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. ( Acosta v City of New York , 39 AD3d 629 [2nd Dept., 2007], Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept., 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept., 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2nd Dept., 1998]).
Petitioner argues that he did not file a Notice of Claim within the requisite time period as to the civil charges arising out of the false arrest and assault claims because he was fearful that the criminal proceedings against him would be adversely affected. The Courts have recognized limited excuses for failure to file a timely Notice of Claim. If petitioner's sole argument is that he did not want to file the Notice of Claim because of the pending criminal charges, then in all cases where there are criminal charges pending there would be a reasonable excuse for the delay. Furthermore, if the Courts have not accepted that ignorance of the law serves as a valid excuse for failure to file a Notice of Claim ( Astree v New York City Transit Authority, 31 AD3d 589 [2d Dept 2006], Gofman v City of New York, 268 AD2d 588 [2d Dept 2000], Saafir v Metro-North Commuter R. Co. [ 2d Dept 1999]), then in a situation where the petitioner is aware of the provision but chooses not to file, as is suggested here, that cannot be accepted as an excuse. Courts have in limited situations recognized that even imprisonment does not excuse the delay ( Pascucci v Nassau County, Misc 2d 229 [1957], Application of Russell v. City of New York, 2003 WL 21146884 [2003].) and in addition that there should not be a toll of the time to file the Notice of Claim while imprisoned. ( Lavalliere v Department of Corrections of City of New York 304 AD2d 370 [1st Dept 2003]).
In the instant matter, however, the petitioner was an infant of seventeen years of age at the time of his arrest and until March 4, 2008, when he became eighteen. In determining whether to grant leave to serve a late notice of claim, the court must consider among other factors, whether the claimant was an infant. General Municipal Law § 50-e(5). Where failure to serve a timely notice of claim is related to the infancy of the claimant, such may constitute an acceptable excuse and warrant leave to serve a late notice of claim. Sanna v. Bethpage Public Schools Union Free School District 21, 193 AD2d 505, 597 NYS2d 430 (2nd Dept. 1993).
Where there is a nexus between the claimant's infancy and his or her failure to serve a timely notice of claim, and the public corporation has acquired actual knowledge of the facts underlying the claim with in a reasonable time, and is not prejudiced by the delay, courts will often exercise their discretion to permit the late service of notice. Tomlinson v. New York City Health and Hospitals Corp., 190 AD2d 806, 593 NYS2d 565 (2d Dep't 1993). During the period of his infancy there may well have been a fear of retaliation combined with his young age which contributed to his failure to take immediate steps to preserve his rights. See, Russo v. Monroe-Woodbury Central School District, 282 .A.D 2d 465, 723 NYS2d 198 (2nd Dept. 2001).
In determining whether to permit the filing of a late Notice of Claim, the presence or absence of any one factor under GML § 50-e is not determinative, and the absence of a reasonable excuse for the delay is not necessarily fatal. ( Nardi v County of Nassau 18 AD3d 520 [2nd Dept., 2006].)
Actual knowledge of the essential facts of the claim must have been acquired by the City within the 90 days or a reasonable time thereafter, not just knowledge of the occurrence. ( Matter of Felice v Easport/South Manor , 50 AD3d 138 [2d Dept 2008].) Here, petitioner asserts that the City had actual knowledge of the facts constituting the claim because a member of the police department was involved in the acts giving rise to the instant claim, the police department is in possession of the records of the incident, and the City obtained a Grand Jury indictment on the basis of those documents and prosecuted the case against petitioner until it was finally dropped on January 9, 2009. See, Ragland v New York City Housing Authority, 201 AD2d 7 [2d Dept 1994] along with the cases that relate to the holding in Ragland finding that where a member of the police force was actually involved in the incident giving rise to the action therein, knowledge of the facts constituting the claim is imputed to the City and Police Department.
In this case because petitioner has shown that the City received knowledge of the essential facts of the claim within the 90 day period or within a reasonable time thereafter as required by GML § 50, the City would be not prejudiced by the late filing. Irizarry v. City of New York, 25 Misc 3d 1218 (A), 2009 WL 3417847, (NY Sup. 2009). As in Ragland, petitioner's arrest records have been sealed, and respondent argues that it will be prejudiced if it is not allowed to view these records. The Court hereby conditions the granting of petitioner's motion to file a late Notice of Claim, nunc pro tunc, on petitioner providing respondents with the appropriate release(s) to enable respondent to obtain and unseal petitioner's records.
Accordingly, the Court finds that as petitioner was an infant at the time of his arrest and remained an infant during throughout most of the 90 day period in which a notice of claim should have been filed, the 90 day period shall be tolled in accordance with CPLR § 208. Petitioner was not only an infant, but alleges that he feared retaliation if he filed a Notice of Claim during the period of his prosecution. The Court finds such fear to be reasonable under the facts of this matter, and finds petitioner's excuse for late filing to be reasonable.
As stated above, the City received knowledge of the essential facts of the claim during petitioner's arrest, detention, indictment and prosecution in a reasonable time. Defendant City has more knowledge of the actual facts of this matter than does the petitioner, as investigations were conducted, witnesses interviewed, and relevant documents reviewed by defendant in preparation for the indictments and prosecutions of the three individuals alleged to have been involved in the incidents for which arrests were made. As petitioner was one of these three individuals, the defendant City has in its possession all of the documents, witness statements, investigative reports needed to defend itself in this matter. Defendant City will suffer no prejudice by the granting of this late notice of claim.
Petition to file late notice of claim, nunc pro tunc, is granted in its entirety.