Nunez v. City of New York
| Decision Date | 24 July 2003 |
| Citation | 762 N.Y.S.2d 384,307 A.D.2d 218 |
| Parties | MARSHALL NUNEZ, Appellant,<BR>v.<BR>CITY OF NEW YORK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Claimant presently is a 22-year-old developmentally disabled man who was arrested on October 14, 1999 in connection with a rape. He is functionally illiterate, with the cognitive abilities of an 11-year-old child, and his mathematical skills are limited to finger-counting, as is established by Board of Education and other records. In May 2000, DNA testing established his innocence, and on November 17, 2000, the Bronx County District Attorney's office moved for dismissal of all charges against him. On August 20, 2001, claimant moved for leave to file a late notice of claim pursuant to General Municipal Law § 50-e, putting the municipal defendants on notice regarding a civil action alleging false arrest, unlawful imprisonment and malicious prosecution.
A notice of claim must be filed within 90 days after the claim arose (General Municipal Law § 50-e [1] [a]), though a court may grant the claimant leave to file a late notice of claim within one year and 90 days of accrual (General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950 [1982]). The false arrest and unlawful imprisonment claims accrued on May 25, 2000, when the claimant was released from prison, and the malicious prosecution claim accrued on November 17, 2000, when the proceeding was terminated in his favor by dismissal (Matter of Ragland v New York City Hous. Auth., 201 AD2d 7 [1994]). As to both claims, then, the notice of claim was untimely, but the request for leave to file the late notice of claim was timely, so that the court's denial of the request is properly before us for review.
In connection with his motion, claimant noted his mental incapacity, his mother's lack of knowledge of the requirements of section 50-e, and that he had not been represented by counsel during the filing period. He also argued that the facts regarding his arrest and incarceration were within the possession of defendant New York City Police Department at all times, knowledge of which should be imputed to defendant New York City. He averred that he was unaware of what should be done upon being released from custody, but asked his mother what he should do in June of 2000. She also did not know what to do, but contacted an attorney, present counsel. Counsel affirms that upon ascertaining that a notice of claim had not been filed, he directed claimant to secure copies of Board of Education documentation in order to...
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Houghton v. Cardone
...malicious prosecution claim accrued when the criminal charges against him were terminated in his favor. Nunez v. City of New York, 307 A.D.2d 218, 219, 762 N.Y.S.2d 384 (1st Dep't 2003); Scomello v. Caronia, 232 A.D.2d 625, 625, 648 N.Y.S.2d 688 (2d Dep't 1996). A one-year limitations perio......
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