Ling v. City of N.Y.

• Decision Date: 29 September 2014
• Docket Number: Index No. 155030/2014
• Citation: 2014 NY Slip Op 32585 (U)
• Parties: SHI LING, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

2014 NY Slip Op 32585(U)

SHI LING, Plaintiff, v. THE CITY OF NEW YORK, Defendant.

Index No. 155030/2014

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5

September 29, 2014

DECISION/ORDER

Seq. No. 001

PRESENT: Hon. Kathryn E. Freed, J.S.C.

HON. KATHRYN E. FREED:

RECITATION, AS REQUIRED BY CPLR22I9 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.

PAPERS

NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED

1,2.(Exs. A-D)

ANSWERING AFFIDAVIT

3

REPLYING AFFIDAVIT

4

EXHIBITS

OTHER

UPON THE FOREGOING CITED PAPERS. THIS DFCISION/ORDER ON THE MOTION IS AS FOLLOWS:

Plaintiff Shi Ling moves, pursuant to General Municipal Law ("GML") § 50-e (5), for an order deeming the notice of claim which she filed on defendant The City of New York ("the City") on March 20, 2014, sounding in false arrest, false imprisonment, and excessive force, to be deemed filed timely nunc pro tunc. In the alternative, plaintiff seeks leave to file a late notice of claim on the City sounding in malicious prosecution. The City opposes the application Upon oral argument, a review of the papers presented, and the relevant statutes and case law, this Court grants theapplication to the extent of deeming the notice of claim filed against respondents on March 20, 2014 timely filed nunc pro tunc provided that plaintiff provide the City with authorizations allowing the City to examine, inspect, and copy the file and record in the criminal proceeding against plaintiff, and to unseal the police records in connection therewith.

Factual and Procedural Background;

Plaintiff Shi Ling claims that, on October 14, 2013, New York City Police Officer Yeoman Castro falsely arrested and falsely imprisoned her. She also claims that Officer Castro used excessive force. The accusatory instrument written by Officer Castro on November 5, 2013 reflects that, on the day of plaintiff's arrest, the latter was selling counterfeit handbags at 727 Eighth Avenue in Manhattan. Ex. A.¹ On January 21, 2014, plaintiff accepted an adjournment in contemplation of dismissal. Plaintiff's Aff. In Support, at par. 7.

On March 20, 2014, plaintiff filed a notice of claim against the City alleging false arrest, false imprisonment, and excessive force arising from the October 14, 2013 incident. Ex. B.

On May 21, 2014, plaintiff commenced an action against the City alleging the same causes of action. Ex. C. Plaintiff claimed that she remained "in custody and confinement" from October 14 until October 15, 2013. Ex. C. The City joined issue by service of its answer on June 13, 2014. Ex. D.

Plaintiff now moves, pursuant to GML § 50-e (5), to deem her notice of claim to have been timely served. The City opposes the motion, which was filed on June 24, 2014.Positions of the Parties:

In an affirmation in support of plaintiff's motion, plaintiff's counsel asserts that this Court should deem plaintiff's notice of claim to have been filed in a timely fashion. Counsel asserts that plaintiff did not file a notice of claim within 90 days because she did not wish to "seek to obtain any civil remedies until she was no longer in criminal jeopardy with a constitutional right to remain silent, and the criminal action against her had been adjourned in contemplation of dismissal." Plaintiff's AIT. In Support, at par. 8. Further, counsel maintains that the City was not prejudiced by plaintiff's delay in filing the notice of claim because it "made a multitude of records in the ordinary course of business of the Police Department, the Office of the District Attorney and the Criminal Court, and can readily make an investigation at this time and obtain any relevant records, as well as the names of witnesses, especially its own participating employees." Plaintiff's Aff. In Support, at par. 11.

The City argues that plaintiff's motion must be denied since her excuse for failing to file a timely notice of claim, i.e., that criminal charges were pending against her, is deficient. Next, the City asserts that plaintiff failed to demonstrate that it had actual knowledge of the facts giving rise to the claim within 90 days after the said claim arose. In support of this argument, the City maintains that it is prevented from investigating the claim because plaintiff's criminal records "were most likely sealed". City's Aff. In Opp., at par. 18. Further, the City asserts that plaintiff failed to demonstrate that it would not be prejudiced if plaintiff were permitted to serve a late notice of claim.

In a reply affirmation in further support of plaintiff's motion, plaintiff's counsel reiterates his arguments that plaintiff set forth a reasonable excuse for her delay in filing a notice of claim and that the City will not be prejudiced if plaintiff is granted leave to file a late notice of claim.Conclusions of Law:

It is well settled that, in order to commence a tort action against a municipality, the claimant is required to serve a notice of claim within 90 days of the alleged injury. See GML § 50-e (1)(a); Funt v Human Resources Admin. of the City of New York, 68 AD3d 490 (1^st Dept 2009), lv dismissed 15 NY3d 911 (2010); Jordan v City of New York, 41 AD3d 658, 659 (2d Dept. 2007). The filing of a notice of claim is a condition precedent without which an action against a municipal entity is barred.

Despite the foregoing, GML § 50-e (5) confers upon a court the discretion to determine whether to permit the filing of a late notice of claim. In making this determination, the court must consider the factors set forth in the said statute, which include: (1) an explanation for the delay in filing a timely notice of claim; (2) whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety days or a reasonable time thereafter; and (3) whether the late filing has substantially prejudiced the entity's ability to investigate and defend against the claim. See GML §50-e (5); Williams v Nassau County Med. Ctr., 6 N.Y.3d 531, 535 (2006), Plaza v New York Health & Hosps. Corp., 97 A.D.3d 466 (1^st Dept. 2012); Bazile v City of New York, 94 A.D.3d 929, 929-930 (2d Dept. 2012); Acosta v City of New York, 39 A.D.3d 629 (2d Dept. 2007); Seif v City of New York, 218 A.D.2d 595 (1^st Dept. 1995); Goldstein v Clarkstown Cent. School Dist., 208 A.D.2d 537 (2d Dept. 1994), lv denied 85 N. Y.2d 810(1995). While the court has discretion in determining these motions, the statute is remedial in nature and, as such, should be liberally construed. See Camacho v City of New York, 187 A.D.2d 262 (1^st Dept. 1992).

"[W]hether the public corporation acquired timely knowledge of the essential facts constituting the claim is seen as a "factor which should be afforded great weight.'" Matter ofDell 'Italia v Long Is. R.R. Corp., 31 A.D.3d 758, 759 (2d Dept. 2006), quoting Matter of Morris v County of Suffolk, 88 A.D.2d 956 (2d Dept. 1982), affd 58 N.Y.2d 767 (1982).' Indeed, actual knowledge of the essential facts of the claim, not just knowledge of the occurrence, must have been acquired by the City. See Matter of Santopietro v. City of New York, 50 A.D.3d 390 (1^st Dept. 2008); Chattergoon v. New York City Hous. Auth., 197 A.D.2d 397 (1^st Dept. 1993); affd 78 N.Y.2d 958 (1993). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay." Williams v. Nassau County Med. Ctr., supra at 539; see also Jordan v. City of New York, supra at 659.

The Appellate Division, First Department has specifically addressed the issues of what constitutes"actual knowledge" of the essential facts, and also whether actual knowledge possessed by the police can be imputed to the City, and has rendered conflicting decisions. In Evans v New York City Hous. Auth., 176 A.D.2d 221 (1st Dept. 1991), lv denied 79 N.Y.2d 754 (1992), the Supreme Court granted leave to serve a late notice of claim, holding that the existence of a police aided report indicated that the respondent had actual knowledge of essential facts underlying the crime of rape. The First Department reversed, noting that nothing in the aided report connected the rape with the defective lock or lack of security which was the basis of that petitioner's notice of claim. In Chattergoon v New York City Hous. Auth., supra, a majority of the First Department held that a police investigation of the homicide of petitioner's decedent did not give actual knowledge to the respondent, since the police investigation was dedicated to locating the murderer and not toward defending any claim of negligence related to the respondent.

Matter of Schiffman v City of New York, 19 A.D.3d 206 (1^st Dept. 2005), involved the actions of the police in response to an alleged assault and ensuing civilian struggle. In that case, the First Department held that the City acquired notice of the essential facts based on the fact that the policecalled to the scene were directly involved in all aspects of the claims emanating from the death of that petitioner's decedent. The court further held that, since such knowledge was documented in the individual officers' memo books and official Police Department reports, it was imputed to the respondent municipality. Thus, held the First Department, the respondents in these matters were not prejudiced by any delay in the filing the notice of claim.

In Matter of Ragland v New York City Horn. Auth., 201 A.D.2d 7 (2d Dept. 1994), the Appellate Division found that "actual knowledge has been found to exist when there are other factors in addition to the existence of an accident or aided report. A factor of considerable significance in this regard arises when it is the acts of the police which give rise to the very claim set forth in the proposed notice." Id., at 9; see also Tatum v. City of New York, 161 A.D.2d 580 (2d Dept. 1990), lv denied 76 N.Y.2d 709 (1990) (false imprisonment and malicious prosecution); McKenna v. City of New York, supra (false arrest and imprisonment); ...