Orozco v. City of N.Y.

• Decision Date: 16 December 2021
• Docket Number: 14325,Index No. 155631/20,Case No. 2021–01347
• Citation: 200 A.D.3d 559,161 N.Y.S.3d 1
• Parties: In the Matter of Adan OROZCO, Petitioner–Respondent, v. The CITY OF NEW YORK, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 559

161 N.Y.S.3d 1

In the Matter of Adan OROZCO, Petitioner–Respondent,

v.The CITY OF NEW YORK, Respondent–Appellant.

14325

Index No. 155631/20

Case No. 2021–01347

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

ENTERED December 16, 2021

James E. Johnson, Corporation Counsel, New York (Elina Drucker of counsel), for appellant.

Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for respondent.

Manzanet–Daniels, J.P., Mazzarelli, Moulton, Gonza´lez, Pitt, JJ.

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered October 16, 2020, which granted petitioner Adan Orozco's petition for leave to file a late notice of claim for false arrest, false imprisonment, and malicious prosecution, affirmed, without costs.

Petitioner was arrested for a narcotics-related offense on August 13, 2018 in the vicinity of 19 Elizabeth Street by NYPD officers with personnel from the Special Narcotics Prosecutor for the City of New York present. Petitioner asserts that he was arrested based on what he claims was a fraudulently-procured warrant by respondent's police officers. After being in police custody over the course of five months, petitioner was released upon the favorable termination of the criminal proceedings against him, and all adverse charges were unconditionally dismissed on December 24, 2018.

Petitioner filed the underlying petition seeking leave to file a late notice of claim on July 23, 2020. The notice of claim provides that petitioner was falsely arrested, falsely imprisoned, and maliciously prosecuted by the police and the district attorney's office. Petitioner's claims are predicated on the allegedly intentional and unlawful acts of respondent's employees. Plaintiff alleges that respondent's officers perpetrated the subject arrest and initiated the subject criminal prosecution despite lacking the requisite probable cause. Petitioner sought leave to file a late notice of claim within the statute of limitations.

Pursuant to General Municipal Law § 50–e(1)(a), a tort action against a municipality must be commenced by service of a notice of claim upon the municipality within 90 days of the date on which the claim arose. When considering an application for leave to file a late notice of claim, the court should consider a number of factors, including: (i) the reasonableness of the excuse offered for the delay in filing the notice of claim; (ii) whether the municipality obtained actual knowledge of the essential facts constituting the claim within the 90–day as-of right filing period or within a reasonable time thereafter; and (iii) whether the municipality was prejudiced because the claimant did not file during the as-of-right period ( General Municipal Law § 50–e[5] ).

The statute providing for a late notice of claim is remedial in nature and should be liberally construed (see Matter of Porcaro v. City of New York, 20 A.D.3d 357, 357, 799 N.Y.S.2d 450 [1st Dept. 2005] ). "The statute [ ] is not intended to operate as a device to frustrate the rights of individuals with legitimate claims" ( id. at 358, 799 N.Y.S.2d 450 ).

Respondent is deemed to have actual notice of the claim by virtue of the fact that its employees participated and were directly involved in the conduct giving rising to petitioner's claims and are in possession of records and documents relating to the incident (see Matter of Mitchell v. City of New York, 134 A.D.3d 941, 22 N.Y.S.3d 130 [2d Dept. 2015] ; see also N.F. v. City of New York, 161 A.D.3d 1046, 77 N.Y.S.3d 712 [1st Dept. 2018] ; Lawton v. Town of Orchard Park, 138 A.D.3d 1428, 30 N.Y.S.3d 458 [4th Dept. 2016] ). Respondent's agents procured the allegedly false warrant upon attestations as to probable cause, executed the allegedly false arrest, and generated the reports pertaining thereto; the prosecutor would have had access to those same records and examined same in connection with preparing its opposition to defendant's motions and in preparing more generally for trial. Indeed, personnel from the special narcotics prosecutor were present during the arrest. Under these circumstances, "knowledge of the essential facts constituting the claims within the statutory period can be imputed to the City" ( Grullon v. City of New York, 222 A.D.2d 257, 258, 635 N.Y.S.2d 24 [1st Dept. 1995] ; see e.g. Erichson v. City of Poughkeepsie Police Dept., 66 A.D.3d 820, 888 N.Y.S.2d 77 [2d Dept. 2009] [the city acquired actual knowledge of assault claim where employees of police department engaged in conduct alleged to give rise to the claims]; Matter of Ansong v. City of New York, 308 A.D.2d 333, 764 N.Y.S.2d 182 [1st Dept. 2003] [knowledge imputed to the city where the officers who arrested the plaintiff had immediate knowledge of the events in question]). "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" ( 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 alleging false arrest, unlawful imprisonment, and malicious prosecution, facts regarding the petitioner's arrest and incarceration were in the possession of the respondent police department such that knowledge was imputed to the City]; Diallo v. City of New York, 224 A.D.2d 339, 638 N.Y.S.2d 58 [1st Dept. 1996] [police acquired actual knowledge of malicious prosecution claim since any investigation of incident at the precinct would have necessarily revealed prosecution and final disposition of criminal charges]; Tatum v. City of New York, 161 A.D.2d 580, 555 N.Y.S.2d 158 [2d Dept. 1990] [police arrest report and District Attorney's investigation that culminated in adjournment in contemplation of dismissal constituted actual and constructive notice to the defendant in case alleging false imprisonment and malicious prosecution]).¹

Employees and agents of the NYPD procured the warrant upon allegedly false attestations as to probable cause. Employees and agents of NYPD and the prosecutor's office, including the officers who participated in petitioner's arrest, were present at the scene of the incident and perpetrated the allegedly unlawful actions that now form the basis for petitioner's state law claims.

Pursuant to investigatory procedures, the officers, agents, assistant district attorneys, and investigators who were involved in petitioner's arrest, detention, and prosecution were required to contemporaneously record factual details, including those related to any probable cause determination, so that the District Attorney's Office might properly evaluate the merits of a potential criminal prosecution and draft an accusatory instrument. Those very same probable cause determinations made by respondent's agents are those directly challenged by petitioner's false arrest and malicious prosecution action. Those very same attestations of probable cause by respondent's agents resulted in the issuance of the warrant executed by respondent's agents and the arrest of petitioner by respondent's agents, based on those same attestations of probable cause.

Petitioner made numerous motions during his five-month incarceration, including ones directed to the sufficiency of the probable cause allegations supporting his arrest. The District Attorney's investigation would have entailed evaluating the claims of those very agents of respondent who had sworn out the warrant and effectuated the arrest. Thus, from the moment respondent's agents obtained the warrant through and the time the case was dismissed, respondent was on notice and may be presumed to have actual knowledge of petitioner's claims.

Respondent should be precluded from arguing that it did not acquire actual notice when it is an irrefutable fact that its agents perpetrated the arrest and initiated the prosecution. Respondent's actual knowledge may be presumed by the very nature of the action and the allegations.

"Where, as here, members of the municipality's police department participate in the acts giving rise to the claim, and reports and complaints have been filed by the police, the municipality will be held to have actual notice of the essential facts of the claim" ( Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 11, 613 N.Y.S.2d 937 [2d Dept. 1994] [emphasis omitted]). As the Ragland Court explained, "the existence of reports in its own files concerning those facts and circumstances [giving rise to a claim] is the functional equivalent of an investigation" ( id. ). Respondent's assertion that it lacked knowledge of petitioner's claims rings hollow: If respondent had no knowledge of the facts and circumstances underlying petitioner's arrest and detention, why then were they holding him in jail? While the mere existence of a report under certain circumstances might be insufficient to impute actual knowledge, here those reports were generated by those very persons who engaged in execution of the allegedly false arrest warrant and whose conduct forms the basis of petitioner's suit. To the extent Matter of Singleton v. City of New York, 198 A.D.3d 498, 152 N.Y.S.3d 608 (1st Dept. 2021) differs, we decline to follow it. If we are to depart from settled principle, we should do so explicitly and not on the basis of a one-paragraph memorandum opinion that does not cite or discuss the relevant precedent let alone express an intent to overrule it. Moreover, the cases on which Singleton relied involved not false arrests, but unrelated negligence claims against other entitles where it was not clear that police reports furnished adequate notice (see Matter of Rivera v. New York City Hous. Auth., 25 A.D.3d 450, 807 N.Y.S.2d 373 [1st Dept. 2006] [police report of criminal assault did not contain sufficient facts to apprise the defendants of the plaintiff's intention to...