Matter of Nicholson v. City of New YorkMatter of Nicholson v. City of New York
Zachary W. Carter, Corporation Counsel, New York, NY (Jeremy W. Shweder and Barbara Graves-Poller of counsel), for appellant.
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and HECTOR D. LASALLE, JJ.
DECISION & ORDER
In a proceeding pursuant to
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, that branch of the petition which was, in effect, for leave to serve a late notice of claim with respect to the claim pursuant to
On June 19, 2015, the petitioner was charged in a felony complaint with, inter alia, criminal possession of a weapon in the second degree and menacing in the second degree, based upon the allegations that the petitioner had possessed a firearm in a holding cell of the 103rd precinct station house and had used it to threaten another individual in the cell. On April 4, 2016, the petitioner was released from custody and the charges against him were dismissed.
By order to show cause dated March 7, 2017, the petitioner commenced this proceeding, in effect, for leave to serve a late notice of claim on the City of New York, alleging, inter alia, violations of federal civil and constitutional rights pursuant to
The branch of the petition which sought leave to serve a late notice of claim to assert, pursuant to
Further, as the petitioner correctly concedes, the Supreme
With respect to the petitioner‘s remaining state law claims, in determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the municipality in its defense on the merits (see
We disagree with the Supreme Court‘s conclusion that the City acquired actual knowledge of the essential facts constituting the relevant state law claims within 90 days after they arose or a reasonable time thereafter. Actual knowledge could not be readily inferred from two reports dated June 18, 2015, documenting an internal investigation conducted by the police department to determine how a firearm was allegedly carried into, and concealed within, the station house, that “a potentially actionable wrong had been committed by the [City]” against the plaintiff (Matter of Taylor v County of Suffolk, 90 AD3d 769, 770; cf. Matter of Facey v City of New York, 150 AD3d 826, 827; Matter of Plantin v New York City Hous. Auth., 203 AD2d 579, 580; Chattergoon v New York City Hous. Auth., 161 AD2d 141, 142, affd 78 NY2d 958). Moreover, the mere alleged existence of other police reports and records, without evidence of their content, and the involvement of the City‘s police officers in the alleged incident, without more, were insufficient to impute actual knowledge to the City (see Matter of Fethallah v New York City Police Dept., 150 AD3d 998, 1000).
We also disagree with the Supreme Court‘s conclusion that
The petitioner also failed to present “some evidence or plausible argument” supporting a finding that the City was not substantially prejudiced by the more than eight-month delay from the expiration of the applicable 90-day statutory period until the commencement of this proceeding in March 2017 (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466; see Matter of Ramos v Board of Educ. of the City of N.Y., 148 AD3d 909, 912).
Accordingly, those branches of the petition which were for leave to serve a late notice of claim to assert state law claims should have been denied.
MASTRO, J.P., SGROI, DUFFY and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court