Rivera v. City of N.Y.

• Decision Date: 11 August 2017
• Docket Number: No. 22195/14E.,22195/14E.
• Citation: 65 N.Y.S.3d 493 (Table)
• Parties: Steven RIVERA and Jabar Hicks, Plaintiff(s), v. The CITY OF NEW YORK, Police Officer Alex Claudio, Shield No. [Redacted], Police Officer Ariel Marte, Shield No. [Redacted], and Police Officers John Does, individually and in their official capacities, Defendant(s).
• Court: New York Supreme Court

65 N.Y.S.3d 493 (Table)

Steven RIVERA and Jabar Hicks, Plaintiff(s),

v.The CITY OF NEW YORK, Police Officer Alex Claudio, Shield No. [Redacted], Police Officer Ariel Marte, Shield No. [Redacted], and Police Officers John Does, individually and in their official capacities, Defendant(s).

No. 22195/14E.

Supreme Court, Bronx County, New York.

Aug. 11, 2017.

Fisher & Byrialsen, PLLC, Counsel for Plaintiffs.

New York City Law Department, Counsel for Defendants.

BEN R. BARBATO, J.

In this action for, inter alia, common law false arrest, false imprisonment, excessive force, malicious prosecution, and a violation of 42 USC § 1983 premised on the foregoing claims, plaintiffs move seeking an order granting them leave to amend their complaint to name POLICE OFFICER ARIEL MARTE, SHIELD NO. [REDACTED] (Marte) as a defendant. Plaintiffs aver that leave to amend the complaint is warranted pursuant to CPLR § 1024 because they sufficiently identified Marte in the complaint and because they diligently tried to identify her prior to commencement of this action. Defendants THE CITY OF NEW YORK (the City) and POLICE OFFICER ALEX CLAUDIO, SHIELD NO. [REDACTED] (Claudio) oppose the instant motion on grounds that plaintiffs' claims against Marte are time barred and plaintiff fails to establish entitlement to the relation back doctrine promulgated by CPLR § 203(c).

For the reasons that follow hereinafter, plaintiffs' motion is denied.

This is an action for alleged personal injuries as a result of inter alia, common law false arrest, false imprisonment, excessive force, malicious prosecution, and a violation of 42 USC § 1983 premised on the foregoing claims. According to the complaint, filed on May 22, 2014, on February 16, 2013, at or near West Farms Square, Bronx, NY, plaintiffs were battered, arrested, and imprisoned by several police officers, including Claudio. It is alleged that thereafter, plaintiffs were maliciously prosecuted and that the charges against them were subsequently dismissed. Based on the foregoing, plaintiffs interpose eight causes of action. The first and eighth sound in a violation of 42 USC § 1983, wherein plaintiffs allege that Claudio and the other police officers were employed by the City and that the acts that perpetrated against plaintiffs were part of a municipal custom and practice. The second cause of action sounds in a violation of 42 USC § 1983 premised on alleged excessive force. Specifically, it is alleged that Claudio and other officers used force upon plaintiffs and that such force was unreasonable. The third cause of action is for common law battery wherein plaintiffs allege that Claudio and the other officers assaulted and battered them. The fourth and fifth causes of action sound in common law false arrest and false imprisonment wherein it is alleged that plaintiffs were arrested and imprisoned without probable cause. The sixth cause of action sounds in common law intentional infliction of emotional distress wherein it is alleged that defendants' conduct was outrageous and inflicted severe distress upon plaintiffs. The seventh cause of action sounds in common law malicious prosecution wherein it is alleged that defendants maliciously prosecuted plaintiffs without probable cause.

Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay in seeking the proposed amendment ( McMcaskey, Davies and Associates, Inc. v. New York City Health & Hosps. Corp, 59 N.Y.2d 755, 757 [1983] ; Fahey v. County of Ontario, 44 N.Y.2d 934, 935 [1978] ). Delay, however, in seeking leave to amend a pleading is not in it of itself a barrier to judicial leave to amend, instead, "[i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" ( Edenwald Contracting Co. v. City of New York, 60 N.Y.2d 957, 958 [1983]. A failure to adequately explain the delay in seeking to amend the pleadings, if coupled with prejudice, will generally warrant denial of a motion to amend a pleading.

Even if there is no prejudice resulting from the proposed amendment, however, before leave is granted, it must be demonstrated that the proposed amendment has merit ( Thomas Crimmins Contracting Co., Inc. v. City of New York, 74 N.Y.2d 166, 170 [1989] ["Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore, properly denied."]; Herrick v. Second Cuthouse, Ltd., 64 N.Y.2d 692, 693 [1984] [Court concluded that defendant could amend its answer when the amendment would not prejudice plaintiff and where the amendment was found to have merit]; Mansell v. City of New York, 304 A.D.2d 381, 381–382, 758 N.Y.S.2d 39 [1st Dept 2003] ). Thus, when seeking to amend a complaint the plaintiff must proffer evidence establishing that the proposed amendment has merit ( Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636, 637, 721 N.Y.S.2d 662 [2d Dept 2001] ; Heckler Elec. Co. v. Matrix Exhibits–N.Y., 278 A.D.2d 279, 279, 718 N.Y.S.2d 213 [2d Dept 2000] ) and the motion to amend should be granted "unless the insufficiency or lack of merit is clear and free from doubt" ( Noanjo Clothing v. L & M Kids Fashion, 207 A.D.2d 436, 437, 615 N.Y.S.2d 747 [2d Dept 1994] ; Weider v. Skala, 168 A.D.2d 355, 355, 563 N.Y.S.2d 76 [1st Dept.1990) [Court held that plaintiff's proposed amendment to include a tortious interference claim was legally insufficient and was not meritorious. Consequently, the motion seeking leave to amend the complaint to assert that cause of action was denied] ).

Moreover, leave to amend a complaint will not be granted unless the proposed amendment, as pled, establishes a cause of action ( Thompson v. Cooper, 24 A.D.3d 203, 205, 806 N.Y.S.2d 32 [1st Dept 2005] ; Ancrum v. St. Barnabas Hosp., 301 A.D.2d 474, 475, 755 N.Y.S.2d 28 [1st Dept 2003] ; Davis & Davis v. Morson, 286 A.D.2d 585, 585, 729 N.Y.S.2d 890 [1st Dept 2001] ).

Since the court must examine the proposed pleading for patent sufficiency, it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion ( Loehner v. Simons, 224 A.D.2d 591, 591, 639 N.Y.S.2d 700 [2d Dept 1996] ; Branch v. Abraham and Strauss Department Store, 220 A.D.2d 474, 476, 632 N.Y.S.2d 168 [2d Dept 1995] ; Goldner Trucking Corp. v. Stoll Packing Corp., 12 A.D.2d 639, 640, 208 N.Y.S.2d 1004 [2d Dept 1960] ).

Common Law Claims

Plaintiffs' motion seeking leave to amend their complaint to add Marte as a defendant and assert common law claims against her is denied insofar as she was never named as a defendant in the notice of claim served upon the City and as such any common law/State law claims against her are barred.

Pursuant to General Municipal Law (GML) § 50–e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality. GML § 50–e(a) reads

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.

Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a nullity ( Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637 [1st Dept 2004] ; De La Cruz v. City of New York, 221 A.D.2d 168, 169, 633 N.Y.S.2d 145 [1st Dept 1995] ).

GML § 50–e(2), requires that a notice of claim

be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney if any,; (2) the nature of the claim; (3) the time when, the place where, and the manner in which the claim arose

It is, thus, well settled that a notice of claim is only adequate and compliant with GML § 50–e(2), when it contains "information sufficient to enable the city to investigate the claim" ( O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358 [1981] [Court granted defendant's motion to dismiss plaintiff's cause of action for trespass when the notice of claim served upon the defendant failed to mention ‘any trespassory acts.’]; Adkins v. City of New York, 43 N.Y.2d 346, 350 [1977] ; Canelos v. City of New York, 37 A.D.3d 637, 637–638, 830 N.Y.S.2d 334 [1st Dept 2007] ["The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipal agency to investigate the allegations contained in the notice of claim."]; Leone v. City of Utica, 66 A.D.2d 463, 468, 414 N.Y.S.2d 412 [4th Dept 1979], affd 49 N.Y.2d 811 [1980] ). GML § 50–e(2), however, does not require that the information within a notice of claim be asserted "with literal nicety or exactness" ( Brown v. City of New York, 95 N.Y.2d 389, 393 [2000] ), and again, the test is "whether [the notice of claim] includes information sufficient to enable the city to investigate" (id.).

Notwithstanding the foregoing, it is equally well settled that theories of liability not listed within a notice of claim can neither be asserted nor prosecuted ( Davis v. New York City Transit Authority, 117 A.D.3d 586, 586, 986 N.Y.S.2d 449 [1st Dept 2014] ; Williams v. County of Westchester, 103 A.D.3d 796, 797, 960 N.Y.S.2d 149 [2d Dept 2013] ; Rodriguez v. Board of Educ. of City of New York, 107 A.D.3d 651, 651, 969 N.Y.S.2d 25 [1st Dept 2013] ; Ana R. v. New York City Hous. Auth., 95 A.D.3d 981, 981, 943 N.Y.S.2d 765 [2d Dept 2...