City of N.Y. v. Cnty. of Nassau

• Decision Date: 25 January 2017
• Parties: In the Matter of CITY OF NEW YORK, appellant, v. COUNTY OF NASSAU, respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 948
46 N.Y.S.3d 155
2017 N.Y. Slip Op. 00465

In the Matter of CITY OF NEW YORK, appellant,
v.
COUNTY OF NASSAU, respondent.

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

Jan. 25, 2017.

46 N.Y.S.3d 156

Zachary W. Carter, Corporation Counsel, New York, NY (Richard P. Dearing

46 N.Y.S.3d 157

and Aaron M. Bloom of counsel), for appellant.

Carnell T. Foskey, County Attorney, Mineola, NY (Andrew R. Scott of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

146 A.D.3d 948

In a proceeding pursuant to General Municipal Law § 50–e(5), in effect, for leave to serve late notices of claim and to deem late notices of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered March 19, 2015, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the petition is granted.

Two police officers hired by the New York City Police Department (hereinafter the NYPD) in January 2012 and July 2012,

146 A.D.3d 949

respectively, attended the NYPD police academy, and completed their basic training at the expense of the petitioner, the City of New York. One of the officers graduated from the academy on June 28, 2012, and the other officer graduated from the academy on December 28, 2012. In May 2013 both officers resigned their positions with the NYPD and accepted positions as police officers with the Nassau County Police Department (hereinafter the NCPD). On August 14, 2013, former Police Commissioner Raymond W. Kelly (hereinafter Commissioner Kelly) of the NYPD sent a letter (hereinafter the demand letter) to former Police Commissioner Thomas V. Dale (hereinafter Commissioner Dale) of the NCPD pursuant to General Municipal Law § 72–c seeking reimbursement for the training expenses incurred on behalf of the two officers. The demand letter was received on August 17, 2013. The City did not receive a response to the demand letter. On April 3, 2014, the City served notices of claim on the County regarding its failure to reimburse the City for the training expenses. On August 14, 2014, the City commenced this proceeding against the County pursuant to General Municipal Law § 50–e(5), in effect, for leave to serve late notices of claim and to deem the notices of claim previously served on the County timely served nunc pro tunc. The Supreme Court denied the petition and, in effect, dismissed the proceeding.

"The particular facts of each case determine whether and at what point a party seeking payment should reasonably have viewed its request for reimbursement as having been constructively rejected, thus giving rise to the accrual of the claim" (Matter of City of New York v. Village of Lynbrook, 129 A.D.3d 838, 839, 11 N.Y.S.3d 228 ). In this case, the earliest the claims could have arisen was September 17, 2013, 30 days after the demand for reimbursement was made and ignored, thus having been constructively rejected by the County (see id. at 839, 11 N.Y.S.3d 228 ). General Municipal Law § 50–e requires that a notice of claim be served within 90 days after a tort claim arises...