Justiniano v. New York City Housing Authority Police
| Decision Date | 11 March 1993 |
| Citation | 191 A.D.2d 252,595 N.Y.S.2d 6 |
| Parties | Gerardo JUSTINIANO, Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY POLICE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, ASCH and RUBIN, JJ.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered December 26, 1991, which upon renewal, granted plaintiff's motion for leave to serve a late notice of claim, and denied defendant's motion to dismiss the complaint for failure to timely serve a notice of claim, unanimously affirmed, without costs.
Plaintiff claims that on or about January 24, 1990 he was riding a motor bike when he was struck by a Housing Authority police car, sustaining multiple fractures of his left leg; that immediately thereafter, the Housing Authority police exited their vehicle, and proceeded to kick and beat him about the head, back, body and limbs; that he was taken to Lincoln Hospital where x-rays revealed the fractures; that the officers refused to allow him to be admitted to the hospital and refused to follow the physician's instructions to obtain a prescription for pain; and that he was arraigned on various charges, including reckless endangerment, reckless driving and driving under the influence of drugs, which were subsequently dismissed in or around March of 1990. Plaintiff served a notice of claim upon the City of New York in February 1990, and first sought to correct that error by moving to serve a late notice of claim against the Housing Authority in January 1991.
Contrary to defendant's argument, the absence of an acceptable excuse for the delay is not necessarily fatal to a motion for leave to serve a late notice of claim (Matter of Reisse v. County of Nassau, 141 A.D.2d 649, 651, 529 N.Y.S.2d 371). Rather, all relevant factors are to be considered, in particular, whether defendant acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period or shortly thereafter (id.; Rodriguez v. County of Nassau, 126 A.D.2d 536, 537, 510 N.Y.S.2d 658). Where, as here, the claim is for false imprisonment and malicious prosecution, such knowledge may be imputed to the municipality through the officers in its employ who made the arrest or initiated the prosecution (see, e.g., Reisse v. County of Nassau, supra; Montalto v. Town of Harrison, 151 A.D.2d 652, 653, 543 N.Y.S.2d 97). We have considered defendant's argument that plaintiff's...
To continue reading
Request your trial
-
Orozco v. City of N.Y.
...through the officers in its employ who made the arrest or initiated the prosecution" ( Justiniano v. New York City Hous. Auth. Police, 191 A.D.2d 252, 253, 595 N.Y.S.2d 6 [1st Dept. 1993] ; see also Nunez v. City of New York, 307 A.D.2d 218, 762 N.Y.S.2d 384 [1st Dept. 2003] [in case allegi......
-
Orozco v. The City of New York
... ... warrant by respondent's police officers. After being in ... police custody over the course of five ... (Justiniano v New York City Hous. Auth. Police, 191 A.D.2d ... 252, 253 [1st ... authority]). Matter of Figueroa v City of New York ... (195 A.D.3d 467 [1st ... ...
-
In the Matter of Victors v. City of New York, 2010 NY Slip Op 30583(U) (N.Y. Sup. Ct. 3/19/2010)
...knowledge of the claim within the 90-day statutory period or shortly thereafter. See Justiniano v New York City Housing Authority Police, 191 A.D.2d 252 (1st Dept 1993); see also Gelish v Dix Hills Water District, 58 A.D.3d 841 (2nd Dept 2009) (delay of less than one month merited granting ......
-
Grullon v. City of New York
...A.D.2d 580, 581, 555 N.Y.S.2d 158, app. denied 76 N.Y.2d 709, 561 N.Y.S.2d 548, 562 N.E.2d 873; see also, Justiniano v. New York Hous. Auth. Police, 191 A.D.2d 252, 595 N.Y.S.2d 6, and Reisse v. County of Nassau, 141 A.D.2d 649, 529 N.Y.S.2d 371.) Therefore, the City cannot claim that it wa......