Parker v. City of New York

206 A.D.3d 936

170 N.Y.S.3d 603

Gary PARKER, appellant,

v.CITY OF NEW YORK, respondent.

2020–06091

Index No. 526104/19

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

Submitted—April 26, 2022

June 22, 2022

Sim & Depaola, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Devin Slack and Kevin Osowski of counsel; Aaron Cole on the brief), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated April 17, 2020, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On May 22, 2019, the petitioner allegedly was falsely arrested and assaulted, including being tasered by one or more New York City police officers. While being treated at a hospital after the alleged incident, the petitioner allegedly was tasered a second time. According to the petitioner, he remained in custody for approximately 24 hours and was thereafter released without any charges being filed against him. Approximately seven months later, in December 2019, the petitioner commenced this proceeding against the City of New York for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc. In support of the petition, he contended that his delay was caused by an inability to retain legal counsel, that the City timely acquired actual knowledge of the essential facts constituting the claim, and that the City would not be substantially prejudiced by the delay. The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

" ‘Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality’ " ( Matter of Ruiz v. City of New York, 154 A.D.3d 945, 946, 63 N.Y.S.3d 425, quoting Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ). "In order to maintain a tort action against a municipality, a claimant generally must serve a notice of claim within 90 days after the claim arises" ( E.R. v. Windham, 181 A.D.3d 736, 737, 122 N.Y.S.3d 106 ; see General Municipal Law § 50–e[1] ). "However, a court, in its discretion, may extend the time for a petitioner to serve a notice of claim" ( Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 999, 55 N.Y.S.3d 325 ; see Matter of Wooden v. City of New York, 136 A.D.3d 932, 25 N.Y.S.3d 333 ; Matter of Mitchell v. City of New York, 134 A.D.3d 941, 22 N.Y.S.3d 130 ). 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, a court must consider all relevant circumstances, including, but not limited to, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the municipality in its defense, and whether the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see Matter of Ibrahim v. New York City Tr. Auth., 202 A.D.3d 786, 787, 158 N.Y.S.3d 865 ; Etienne v. City of New York, 189 A.D.3d 1400, 1401, 134 N.Y.S.3d 738 ). "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 at 738, 122 N.Y.S.3d 106, quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). " ‘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 Mohamed v. New York City, 139 A.D.3d 858, 858, 31 N.Y.S.3d 182, quoting Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ; see Matter of Galicia v. City of New York, 175 A.D.3d 681, 682, 107 N.Y.S.3d 430 ).

Here, the petitioner failed to demonstrate that the City had actual knowledge of the essential facts constituting the claim within 90 days after its accrual or a reasonable time thereafter. 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, 851 N.Y.S.2d 218 ; see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 911, 49 N.Y.S.3d 539 ). 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, 37 N.Y.S.3d 899 ; Matter of Padgett v. City of New York, 78 A.D.3d 949, 950, 912 N.Y.S.2d 75 ). Contrary to the petitioner's contention, the involvement of the City's police officers in the alleged incident did not, without more, establish that the City had actual knowledge of the essential facts constituting the petitioner's claims...