Jimenez v. City of New York, 2009 NY Slip Op 31238(U) (N.Y. Sup. Ct. 6/5/2009)

• Decision Date: 05 June 2009
• Docket Number: 108553/2002
• Citation: 2009 NY Slip Op 31238
• Parties: JOSE JIMENEZ and AMADA FRANCO, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 1

2009 NY Slip Op 31238(U)

JOSE JIMENEZ and AMADA FRANCO, Plaintiff, v.THE CITY OF NEW YORK, Defendant.

108553/2002

Supreme Court of the State of New York, New York County

June 5, 2009

Submission Date: April 1, 2009

Paul H. Schietroma, P.C., For Plaintiff:

Michael A. Cardozo, Corporation Counsel For Defendant City of New York.

DECISION AND ORDER

HON. SALIANN SCARPULLA, J.

In this action to recover damages for personal injuries, defendant the* City of New York(the "City") moves to dismiss the complaint pursuant to CPLR §3211, or in the alternative moves for summary judgment in favor of the City pursuant to CPLR §3212.

On October 9, 2001PlaintiffJose Jimenez("Jimenez"), a Spanish-speaking laborer for a construction and demolition company, was leaving the World Trade Center site ("WTC site") after he worked an overnight shift, when he was stopped at a police checkpoint at Greenwich Street and Chambers Street in New York City.At the checkpoint, Jimenez was stopped by New York City Police OfficerBrian Gore("Gore"), who searched his bag and belongings.Gore found a number of items in Jimenez's possession, including a respirator, personal effects, as well as multiple pairs of pants, work boots and gloves in new condition, with tags still attached (the "new items").

Jimenez brought the respirator and personal effects with him to the WTC site.The new items were given to him by Red Cross volunteers at the WTC site.Gore, upon seeing the new items in Jimenez's bag believed Jimenez to have stolen them.Gore acknowledged that Red Cross volunteers were distributing items to rescue workers, but that as a laborer Jimenez would not be permitted to leave the WTC site with these items.

Jimenez testified at his deposition that Gore never asked him how he came to possess the new items, nor did Gore attempt to communicate to him in Spanish, his primary language.Jimenez explained that other workers who were leaving the WTC site at the same time also had their bags searched and their items examined, but he was the only one detained.At his deposition Gore stated that he would have arrested any other non-rescue worker leaving the site with similar donated items, but admitted that Jimenez was his only arrest.

Jimenez was arrested on October 9,2001, charged with criminal possession of stolen property in the fifth degree, and detained until his arraignment, approximately ten hours later.On January 7, 2002, after a representative from the Red Cross accompanied Jimenez to court to explain that the Red Cross had given Jimenez these items, the criminal case against Jimenez was dismissed.

Jimenez served a notice of claim on the City on or around January 22, 2002(the "notice of claim").Jimenez commenced this action with the filing of a summons and complaint on April 26, 2002.The complaint alleges causes of action for false arrest, malicious prosecution, constitutional torts and loss of services.The City denies all material allegations of the complaint, and asserts two affirmative defenses including assumption of risk and limited liability pursuant to CPLR 1601.

The City now moves pursuant to CPLR 3211 dismissing the complaint, and in the alternative pursuant to CPLR 3212 for summary judgment dismissing the complaint.The City argues that the claims are time barred, that Gore had probable cause to arrest Jimenez, and that Jimenez fails to plead a cause of action for a civil rights violation with requisite specificity.Jimenez argues that the City failed to raise the timeliness of the notice of claim and the probable cause justification in its Answer, thereby waiving these affirmative defenses.Jimenez further argues that the police lacked probable cause, and that he adequately pleaded the cause of action for civil rights violations.

Discussion

In support of its motions to dismiss, the City argues that the cause of action for false arrest is time barred because Jimenez failed timely to file a notice of claim.Pursuant to General Municipal Law ("Gen. Mun. Law")§ 50-e(l), in an action against a municipality seeking to recover damages for personal injury or property damages, claimant must serve a notice of claim against the municipality within ninety days after the claim arises.Nunez v. City of New York,307 A.D.2d 218, 219(1^st Dep't2003)."[A]court may grant the claimant leave to file a late notice of claim within one year and 90 days of accrual."Nunez,307 A.D. 2d at 219(citingGen. Mun. Law§50-e(5);Pierson v. City of New York,56 N.Y.2d 950(1982)).A timely notice of claim is required to proceed against a municipality, and cannot be waived.Kroin v. City of New York,210 A.D.2d 95, 96(1^st Dep't1994)(municipality may not waive requirements as to matter or time of service of notice of claim).An "untimely notice of claim, served without leave of court, is a nullity."Wollins v. New York City Board of Education,8 A.D.3d 30(1^st Dep't2004).

Jimenez's false arrest claim accrued on October 9, 2001, the date he was released from custody.Nunez,307 A.D.2d at 219;Roche v. Village of Tarrytown,309 A.D.2d 842, 843(2d Dep't2003).Therefore, the notice of claim must have been filed within 90 days of October 9, 2001, making the January 22, 2002 notice of claim late by about two weeks.As Jimenez has not sought leave to file a late notice of claim, and the time to do so has elapsed, Gen. Mun. Law§ 50-e (5);Nunez,307 A.D.2d at 219, Jimenez's false arrest cause of action must be dismissed.See, e.g., Tucci v. County of Nassau,50 A.D.2d 945, 946(2d Dep't1975)(cause of action for false arrest properly dismissed where notice of claim untimely).

Despite Jimenez's argument to the contrary, the City did not waive its late notice of claim defense by failing to raise it as an affirmative defense.A plaintiffs failure to comply with the notice of claim requirements is a condition precedent to suit, and as such is part of the plaintiff s substantive cause of action.The municipality is not required to raise it as an affirmative defense to preserve it.Badgett v. New York City Health and Hospitals Corp.,227 A.D.2d 127, 128(1^st Dep't1996)(defendant under no duty to raise plaintiff s failure to properly serve notice of claim as an affirmative defense).Failure to comply with the notice of claim requirements may be raised at any time.Reaves v. City of New York,177 A.D.2d 437(1^st Dep't1991).Accordingly, as Jimenez failed timely to file a notice of claim for his false arrest cause of action, the City's motion to dismiss Jimenez's first cause of action for false arrest is granted.¹

The City also moves for summary judgment dismissing the remainder of the complaint.A party moving for summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law.Alvarez v. Prospect Hosp.,68 N.Y.2d 320(1986).Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action.Zuckerman v. City of New York,49 N.Y.2d 557(1980).

In his second cause of action Jimenez alleges a claim for malicious prosecution.To prevail on a claim for malicious prosecution, Jimenez must prove four elements: (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) actual malice."Colon v. City of New York,60 N. Y.2d 78, 82(1983);Maxwell v. City of New York,156 A.D.2d 28, 33(1^st Dep't1990).Plaintiff must make out all four elements to successfully establish a claim for malicious prosecution.Maskantz v. Hayes,832 N.Y.S.2d 566, 568(1^st Dep't2007).

Jimenez has sufficiently alleged and supported the first two elements of his malicious prosecution claim.As to the third, the City fails to establish as a matter of law that there was probable cause to arrest Jimenez.In a case, such as this, where there is an arrest without a warrant, the police officer "has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful."Broughton v. State of New York,37 N. Y. 451, 458(1975).The defendant then has the burden of proving legal justification — or the existence of probable cause for arrest — as an affirmative defense.²

"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty.A party may act with probable cause even though mistaken, for a mistake of fact . . . may be consistent with probable cause if the party acted reasonably under the circumstances in good faith.Conversely, the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause."Colon v. City of New York,60 N.Y.2d 78, 82(1983)(citations omitted).

In support of its motion for summary judgment, the City submits an attorney affirmation annexing supporting documents, including Jimenez's deposition testimony, Gore's deposition testimony and police records.³This evidence shows that there is a question of fact as to whether Gore had probable cause to arrest Jimenez upon exiting the WTC site with the new items.Jimenez testified that the Red Cross donated items and supplies to all workers at the WTC site, including laborers like himself.As he was leaving the WTC site, he observed several other workers who were also stopped and their bags and possession examined.However, Jimenez testified that all the others subsequently had their items returned and were allowed to leave the WTC site.Jimenez was the only one whose items were not returned, and who was arrested.

Gore testified at his deposition that it was his belief that items donated to workers at the WTC site were only for "rescue workers," a group which he believes to included workers from state agencies, as well as firemen and police from out of state, but which did not...