Rowe v. Nycpd

• Decision Date: 21 June 2011
• Citation: 2011 N.Y. Slip Op. 05477,926 N.Y.S.2d 121,85 A.D.3d 1001
• Parties: Bishop W. ROWE, appellant,v.NYCPD, et al., respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1001
926 N.Y.S.2d 121
2011 N.Y. Slip Op. 05477

Bishop W. ROWE, appellant,
v.
NYCPD, et al., respondents.

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

June 21, 2011.

[926 N.Y.S.2d 122]

G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for respondents.REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[85 A.D.3d 1001] In an action, inter alia, to recover damages for negligence and violation of civil and constitutional rights pursuant to 42 USC § 1983, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Velasquez, J.), dated December 14, 2009, which granted the defendants' motion to dismiss the complaint for failure to serve a timely notice of claim and as time-barred, and (2) an order of the same court dated August 30, 2010, which denied his motion for leave to renew and reargue his opposition to the defendants' motion to dismiss the complaint.

ORDERED that the order dated December 14, 2009, is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages for violation of civil and constitutional rights pursuant to 42 USC § 1983 and substituting therefor a provision denying that branch of the motion; as so modified, the order dated December 14, 2009, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order dated August 30, 2010, as denied that branch of the plaintiff's motion [85 A.D.3d 1002] which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

[926 N.Y.S.2d 123]

ORDERED that the order dated August 30, 2010, is affirmed insofar as reviewed, without costs or disbursements.

General Municipal Law § 50–e requires that a notice of claim be served within 90 days after a tort claim arises against a municipality ( see General Municipal Law § 50–e[1][a] ). “Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality” ( Matter of National Grange Mut. Ins. Co. v. Town of Eastchester, 48 A.D.3d 467, 468, 851 N.Y.S.2d 632). However, a notice of claim is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law ( see 42 USC § 1983; Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123; Burton v. Matteliano, 81 A.D.3d 1272, 916 N.Y.S.2d 438; Montano v. City of Watervliet, 47 A.D.3d 1106, 850 N.Y.S.2d 273; Pendleton v. City of New York, 44 A.D.3d 733, 843 N.Y.S.2d 648).

The Supreme Court properly determined that a timely notice of claim was required to be served upon the defendants to the extent the plaintiff asserted claims sounding in common-law tort ( see Matter of Peterson v. New York City Dept....