Matter of Nunez v. Village of Rockville Ctr.Matter of Nunez v. Village of Rockville Ctr.
Hammill, O‘Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Anton Piotroski and Michael Pender of counsel), for appellants.
Frederick K. Brewington, Hempstead, NY, for respondent.
DECISION & ORDER
In a proceeding pursuant to
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
Prior to commencing an action sounding in tort against a municipality or public corporation,
Here, that branch of the petition which was for leave to serve a late notice of claim to assert, pursuant to
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 AD3d 890, 891; Matter of Ragland v New York City Hous. Auth., 201 AD2d 7, 9). 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 AD3d at 1044; Matter of Ragland v New York City Hous. Auth., 201 AD2d at 9).
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 AD3d at 946-947).
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 AD2d 251, 255). “[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
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 AD3d 742, 745). 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 the Village acquired actual knowledge of any wrongdoing on its part (see Facey v City of New York, 150 AD3d 826, 827; Matter of Lenoir v New York City Hous. Auth., 240 AD2d 497, 498; Matter of Plantin v New York City Hous. Auth., 203 AD2d 579, 580). Moreover, the contents of the reports and other documentation submitted by the petitioner did not support a ready inference that the Village committed a potentially actionable wrong (see Matter of Johnson v County of Suffolk, 167 AD3d at 745; Matter of Taylor v County of Suffolk, 90 AD3d 769, 770). Although our dissenting colleague makes reference to the existence of certain surveillance videos referenced in the file notes of the Nassau County District Attorney‘s Office, the record does not contain such videos, and the file notes do not indicate that any videos were provided to the Village or what the videos depicted. Thus, a finding or even an inference of the Village‘s actual knowledge of the alleged wrongdoing on the part of its police officer is, at best, implausible and speculative.
While the petitioner satisfied his initial burden of showing a
Any references in the petitioner‘s brief to events occurring subsequent to the date of the order appealed from are not properly before this Court and have not been considered (see Colella v GEICO Gen. Ins. Co., 164 AD3d 745, 747; Wilson v Wilson, 21 AD3d 548, 549).
The Village‘s remaining contentions either are without merit or need not be reached in light of our determination.
DILLON, J.P., BALKIN and AUSTIN, JJ., concur.
BARROS, J., concurs in part and dissents in part, and votes to modify the order, on the law, 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
In his notice of claim, the petitioner alleges that on August 4, 2016, he was riding his motorcycle and was stopped at a red light. Police Officer Anthony Federico allegedly turned his police sport utility vehicle (hereinafter SUV) in front of the petitioner‘s motorcycle, nearly striking the petitioner. Officer Federico then emerged from his SUV with his gun drawn. He allegedly pushed the petitioner, which caused the petitioner and the
Thereafter, the petitioner was charged with various Vehicle and Traffic Law violations and, most significantly, a charge of assault in the second degree (
On September 20, 2017, the petitioner commenced this proceeding pursuant to
In determining whether to grant leave to serve a late notice of claim under
Actual Knowledge
“In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” (Matter of D‘Agostino v City of New York, 146 AD3d 880, 880-881 [internal quotation marks omitted]; see Williams v Nassau County Med. Ctr., 6 NY3d at 537). For reports 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” (Matter of Fethallah v New York City Police Dept., 150 AD3d at 1000, quoting Matter of Taylor v County of Suffolk, 90 AD3d at 770).
By definition, a false arrest is an arrest without consent and without the lawful privilege of a warrant (see Smith v County of Nassau, 34 NY2d 18, 22-23; see also Martinez v City of Schenectady, 97 NY2d 78, 85; Broughton v State of New York, 37 NY2d 451, 458). Where an arrest is “effected without a warrant, a presumption arises that [the arrest is] unlawful, and the burden of proving justification, including ‘reasonable cause,’ is cast upon the defendant” (Smith v County of Nassau, 34 NY2d at 23). “As a matter of pleading the defendant has the burden of proving legal justification as an affirmative defense and the defendant will be precluded from introducing such evidence under a general denial” (Broughton v State of New York, 37 NY2d at 458 [emphasis added]).
Here, the petitioner established that the Nassau County District Attorney‘s Office and the Nassau County Police Department (hereinafter NCPD) possessed in their files a copy of a surveillance video of the subject arrest. The records of the NCPD also contain a detailed written description of Officer Federico‘s version of the events leading up to and during his warrantless arrest of the petitioner. The petitioner also submitted the file of the Nassau County District Attorney‘s Office
While the “mere alleged existence of police reports and other records, without evidence of their content, is insufficient to impute actual knowledge to the respondents” (Matter of Fethallah v New York City Police Dept., 150 AD3d at 1000; see Matter of Hamilton v City of New York, 145 AD3d 784), here, the petitioner submitted the contents of the records themselves, which established that an investigation was conducted by the NCPD and the Nassau County District Attorney‘s Office as to the facts and circumstances of the petitioner‘s arrest.
Given the contents of the records and the involvement of Officer Federico in the conduct giving rise to the claim, the Supreme Court providently exercised its discretion by imputing knowledge of the claim to the Village (see N.F. v City of New York, 161 AD3d 1046; Matter of Jaffier v City of New York, 148 AD3d 1021, 1023; Matter of Mitchell v City of New York, 134 AD3d 941, 942; Nunez v City of New York, 307 AD2d 218, 220; Grullon v City of New York, 222 AD2d 257, 258; Matter of Ragland v New York City Hous. Auth., 201 AD2d at 11; Matter of Santana v City of New York, 183 AD2d 665, 666; Tatum v City of New York, 161 AD2d 580, 581; McKenna v City of New York, 154 AD2d 655).
Substantial Prejudice
The petitioner has the initial burden of showing that the late notice will not substantially prejudice the municipality or public corporation (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466). “Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” (id.) Once this initial showing has been made, the municipality or public corporation must respond “with a particularized evidentiary showing” that it will be substantially prejudiced if the late notice is allowed (id. at 467).
“Since the reason for the early filing of a notice of claim is to permit the public corporation to conduct a prompt investigation into the facts and circumstances giving rise to the claim, the existence of reports in its own files concerning those facts and circumstances is the functional equivalent of an investigation” (Matter of Ragland v New York City Hous. Auth., 201 AD2d at 11; see Tatum v City of New York, 161 AD2d at 581; see also Nunez v City of New York, 307 AD2d 218; Matter of Santana v City of New York, 183 AD2d at 666). Given the investigations of the NCPD and the Nassau County District Attorney‘s Office into the circumstances of the arrest, as well as the existence of a video surveillance recording of the subject arrest, the petitioner met his burden of showing that the late notice will not substantially prejudice the Village.
In response, the Village failed to make any showing of prejudice if the late notice is allowed (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 467).
Reasonable Excuse
In his verified petition, the petitioner explained that he did not timely serve a notice of claim because, among other reasons, he was in a “state of fear” during the pendency of the criminal proceeding due to Officer Federico‘s threat that he would “ruin” the petitioner‘s life. The petitioner averred that, when Officer Federico first approached him, the officer had his gun drawn and threatened, “I‘m going to . . . shoot you.” The petitioner averred, “The whole time [Officer Federico] was with me he was out of control. If he could bring these charges and get me locked up for seven days, I was beside myself about what else he would do to ruin my life. Based on how I was treated and my fear of what had occurred to me I feared for my safety and did not want the police or the District Attorney to misconstrue or twist any of my statements and use them against me as part of the false criminal charges that were being leveled against me.”
Although this Court has recognized that “an unsubstantiated fear of reprisal” is not a sufficient excuse for failing to timely serve a notice of claim (Matter of Ruiz v City of New York, 154 AD3d 945, 947 [emphasis added]), here, the petitioner‘s
Given Officer Federico‘s purported threat, that Officer Federico was the complainant, and that Officer Federico was given significant control over plea negotiations, it was reasonable for the petitioner to believe that serving a notice of claim while the criminal charges were still pending would further antagonize Officer Federico against him, and jeopardize the outcome of the criminal proceeding. Accordingly, the Supreme Court providently exercised its discretion in finding the petitioner‘s excuse reasonable.
In sum, the petitioner submitted an abundance of evidence, including police and District Attorney files, showing that knowledge of the essential facts constituting the false arrest claim should be imputed to the Village, and that the Village would not be substantially prejudiced in its defense of the petitioner‘s false arrest claim. The police and District Attorney files not only contain Officer Federico‘s description of the facts and circumstances of the alleged false arrest, i.e., a warrantless arrest without the petitioner‘s consent, but also document the existence of a surveillance video recording the arrest. The petitioner submitted his verified petition demonstrating a reasonable excuse for failing to timely serve a notice of claim. Weighing the above factors, it “cannot be said that the Supreme Court improvidently exercised its well-recognized discretion” in granting that branch of the petition which was for leave to serve a late notice of claim with respect to a cause of action alleging false arrest (Matter of Ruiz v City of New York, 154 AD3d at 947). For the same reasons set forth herein, the court providently exercised its discretion in granting those branches of the petition which were for leave to serve a late notice of
I agree with my colleagues in the majority regarding those branches of the petition which were for leave to serve a late notice of claim with respect to the claims alleging malicious prosecution and violations of federal civil and constitutional rights pursuant to
Accordingly, I vote to modify the order granting the petition.
ENTER:
Aprilanne Agostino
Clerk of the Court