Nunez v. Vill. of Rockville Ctr.

176 A.D.3d 1211

111 N.Y.S.3d 71

In the Matter of Luis A. NUNEZ, Respondent,

v.VILLAGE OF ROCKVILLE CENTRE, et al., Appellants.

2018–06425

Index No. 609551/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 19, 2019

October 30, 2019

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the Village of Rockville Centre and the Village of Rockville Centre Police Department appeal from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), dated April 5, 2018. The order granted the petition.

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging violations of federal civil and constitutional rights pursuant to 42 USC § 1983, and substituting therefor a provision denying that branch of the petition as unnecessary, and (2) by deleting the provision thereof granting those branches of the petition which were for leave to serve a late notice of claim with respect to the state law claims, other than the claim of malicious prosecution, and substituting therefor a provision denying those branches of the petition; as so modified, the order is affirmed, with costs to the Village of Rockville Centre and the Village of Rockville Centre Police Department.

The petitioner was arrested on August 4, 2016, and charged with, inter alia, assault in the second degree. While operating his motorcycle, the petitioner allegedly struck a Village of Rockville Centre Police Department police officer, who had purportedly stopped the petitioner for numerous violations of the Vehicle and Traffic Law. The petitioner was held in custody for approximately one week. During the pendency of the criminal charges, the petitioner had counsel to represent him. On August 14, 2017, the charges against him were dismissed.

By order to show cause filed September 20, 2017, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the Village of Rockville Centre and the Village of Rockville Centre Police Department (hereinafter together the Village), alleging, inter alia, state law claims of discrimination, false arrest, malicious prosecution, abuse of process, excessive force, failure to intervene, denial of access to the courts, intimidation, and intentional infliction of emotional distress, as well as violations of federal civil and constitutional rights. The petition with the proposed notice of claim were served upon the Village on October 11, 2017. The Supreme Court granted the petition. The Village appeals.

Prior to commencing an action sounding in tort against a municipality or public corporation, General Municipal Law § 50–e requires that a notice of claim be served upon the municipality or public corporation within 90 days of the date that the claim arises (see General Municipal Law § 50–e[1][a] ; Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ). To grant a petition for leave to serve a late notice of claim, the court must consider whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality or public corporation in maintaining its defense (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 461, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; N.F. v. City of New York, 161 A.D.3d 1046, 1047, 77 N.Y.S.3d 712 ; Matter of Benjamin v. Nassau Health Care Corp., 138 A.D.3d 988, 988–989, 31 N.Y.S.3d 115 ).

Here, that branch of the petition which was for leave to serve a late notice of claim to assert, pursuant to 42 USC § 1983, violations of the petitioner's federal civil and constitutional rights should have been denied as unnecessary (see Matter of Nicholson v. City of New York, 166 A.D.3d 979, 979, 88 N.Y.S.3d 150 ; Matter of Royes v. City of New York, 136 A.D.3d 1042, 1044, 25 N.Y.S.3d 368 ). Such a claim is not subject to the New York State statutory notice of claim requirement (see Felder v. Casey, 487 U.S. 131, 153, 108 S.Ct. 2302, 101 L.Ed.2d 123 ; Matter of Nicholson v. City of New York, 166 A.D.3d at 979, 88 N.Y.S.3d 150 ; Meyer v. County of Suffolk, 90 A.D.3d 720, 722, 934 N.Y.S.2d 235 ).

We agree with the Supreme Court's determination to grant that branch of the petition which was for leave to serve a late notice of claim to assert a state law claim of malicious prosecution against the Village. The claim of malicious prosecution did not accrue until August 14, 2017, when the charges against the petitioner were dismissed by the Nassau County District Court (see Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 891, 6 N.Y.S.3d 78 ; Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 9, 613 N.Y.S.2d 937 ). Thus, the notice of claim that was served with the petition on October 11, 2017, was timely with respect to the state malicious prosecution claim (see Matter of Royes v. City of New York, 136 A.D.3d at 1044, 25 N.Y.S.3d 368 ; Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d at 9, 613 N.Y.S.2d 937 ).

The Supreme Court, however, improvidently exercised its discretion in granting those branches of the petition which were for leave to serve a late notice of claim alleging the remaining state law claims. The petitioner's explanation that the counsel who represented him during the criminal proceeding did not advise him of the notice of claim requirement and that he did not learn of the requirement until July 2017 when he retained his current attorney to represent him in a potential civil action did not constitute a reasonable excuse for his failure to timely serve the Village with a notice of claim for the remaining state law claims (see Matter of Islam v. City of New York, 164 A.D.3d 672, 674, 83 N.Y.S.3d 272 ). The petitioner's ignorance of the law does not constitute a reasonable excuse (see Matter of Bhargava v. City of New York, 130 A.D.3d 819, 820, 13 N.Y.S.3d 552 ). Moreover, the petitioner's assertion that he knowingly delayed commencing any action against the Village while the criminal charges were pending due to unsubstantiated claims of fear and intimidation does not constitute a reasonable excuse (see Matter of Ruiz v. City of New York, 154 A.D.3d 945, 947, 63 N.Y.S.3d 425 ; see also Matter of Formisano v. Eastchester Union Free School Dist., 59 A.D.3d 543, 544, 873 N.Y.S.2d 162 ).

Our dissenting colleague suggests that the petitioner's claims of fear and intimidation were substantiated due to the arresting police officer's conduct during the events leading up to the petitioner's arrest and the petitioner's discussions with the Nassau County District Attorney's Office during the criminal prosecution. Although the police officer's alleged explicit language and threats during the arrest are of concern if true, there are no allegations that the police officer and the petitioner had any interaction after the date of the petitioner's arrest. The petitioner offers no precedent that supports his contention that fear and intimidation can support a claim of a reasonable excuse for failing to timely serve a late notice of claim under the circumstances presented here (see Matter of Ruiz v. City of New York, 154 A.D.3d at 946–947, 63 N.Y.S.3d 425 ).

The petitioner did not establish that the Village acquired actual knowledge of the essential facts constituting the remaining state law claims within 90 days after they arose or a reasonable time thereafter. "Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim" ( Caselli v. City of New York, 105 A.D.2d 251, 255, 483 N.Y.S.2d 401 ). "[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 998, 1000, 55 N.Y.S.3d 325 [internal quotation marks omitted] ). Here, the involvement of a Village police officer in arresting the petitioner did not, without more, establish that the Village acquired actual knowledge of the essential facts constituting the petitioner's remaining state law 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 at 674, 83 N.Y.S.3d 272 ; Matter of Ruiz v. City of New York, 154 A.D.3d at 946, 63 N.Y.S.3d 425 ; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d at 1000, 55 N.Y.S.3d 325 ). Nor did the contents of a police accident report prepared by a Nassau County Police Department (hereinafter NCPD) police officer from the First Precinct, which indicated that the petitioner's motorcycle struck the Village police officer while the officer was effectuating an arrest, provide the Village with actual notice of the petitioner's state law claims, inter alia, of false arrest (see Matter of Cruz v. Transdev. Servs., Inc., 160 A.D.3d 729, 731, 75 N.Y.S.3d 71 ; Matter of Klass v. City of New York, 103 A.D.3d 800, 801, 959 N.Y.S.2d 738 ; Caselli v. City of New York, 105 A.D.2d at 255, 483 N.Y.S.2d 401 ).

The reports and other documentation prepared by the NCPD and the Nassau County District Attorney's Office cannot be imputed to the Village (see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 745, 90 N.Y.S.3d 84 ). The fact that the NCPD and the Nassau County District Attorney's Office investigated the alleged assault upon a Village police officer does not establish that...