Torres v. City of N.Y.

• Citation: 2013 NY Slip Op 31829
• Decision Date: 05 August 2013
• Docket Number: Seq. No. 001,Index No. 153017/2013
• Parties: EUDY JOSE TORRES, Petitioner, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOHN DOE, Respondents.
• Court: United States State Supreme Court (New York)

2013 NY Slip Op 31829

EUDY JOSE TORRES, Petitioner,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT,
POLICE OFFICER JOHN DOE, Respondents.

Index No. 153017/2013
Seq. No. 001

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

DATED: August 5, 2013

DECISION/ORDER
PRESENT: Hon. Kathryn E. Freed J.S.C.

HON. KATHRYN E. FREED:

RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.

+---------------------------------------------------+
                ¦PAPERS ¦NUMBERED¦
                +------------------------------------------+--------¦
                ¦NOTICE OF MOTION AND AFFIDAVITS ANNEXED ¦ ¦
                +------------------------------------------+--------¦
                ¦ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED¦1-3 ¦
                +------------------------------------------+--------¦
                ¦ANSWERING AFFIDAVITS ¦4 ¦
                +------------------------------------------+--------¦
                ¦REPLYING AFFIDAVITS ¦ ¦
                +------------------------------------------+--------¦
                ¦EXHIBITS ¦ ¦
                +------------------------------------------+--------¦
                ¦OTHER ¦ ¦
                +---------------------------------------------------+
                

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

Petitioner moves, via Order To Show Cause, for an Order permitting him to serve and file a late Notice of Claim nunc pro tunc upon respondents, pursuant to General Municipal Law§ 50-e. Respondents oppose.

After a review of the papers presented, all relevant statutes and case law, the Court grants petitioner's O.S.C.

Factual and procedural background:

Petitioner alleges that on July 28, 2012 at approximately 9:00 pm, he was in the lobby of

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1428 5th Avenue, a residential apartment building in New York County. He was there for the sole purpose of visiting his friend, Jonathan Barrow, when several police officers approached him and accused him of trespassing. Petitioner informed the officers that he was merely visiting his friend who resided in Apartment 411, however, they ignored him. Immediately after petitioner was stopped, Mr. Barrow came to the lobby and explained to the officers that petitioner was there to visit him and thus, had permission to be inside the building. Mr. Barrow also showed the officers his identification. Nevertheless, the officers handcuffed petitioner and placed him under arrest.

Petitioner was then transported to the local precinct where he was fingerprinted and photographed. His personal property was confiscated and he was placed in a cell. He remained in Central Booking until July 29, 2012 at 11:00 pm, when he was finally arraigned, and subsequently released on his own recognizance. He was required to return to court on two occasions, before his case was finally dismissed on November 8, 2012. Petitioner asserts that after the dismissal, "nobody informed [him] that [he] had a right to bring an action against the City and the NYPD. If he had known this about this right, [he], at the very least, would have spoken to an attorney regardless of the fact that he was concerned, scared and fearful of retaliation by the police." (See O.S.C. p.5¶ 11). Petitioner adamantly asserts that he has a meritorious cause of action in that he did nothing illegal or improper to warrant being arrested.

Positions of the parties:

Petitioner asserts that his request for leave to file a late notice of claim should be granted as leave is sought within one year and ninety days of accrual of his claim. He argues that his ignorance of the ability to bring a claim against the NYPD is a reasonable excuse for failing to serve the Notice of Claim within the statutorily mandated 90 days from the accrual of the subject incident. Petitioner also argues that respondents would not be prejudiced by the granting of his O.S.C., in that they

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acquired actual notice of the essential facts of his claim within the statutory time period from filed reports of members of the NYPD who participated in the underlying acts giving rise to the instant claim.

Petitioner also argues that even if respondents did not have notice of the essential facts, they still obtained notice within a reasonable time thereafter. He asserts that his criminal case was dismissed on November 8, 2012. Thus, the 90 days for his claim of malicious prosecution began to run on that day. Since his proposed Notice of Claim was filed on November 28, 2012, it was timely with regard to this particular cause of action. Additionally, petitioner argues that his claim for false imprisonment began to run at the time he was released from detention, which was on or about July 29, 2012. He argues that despite the fact that his Notice of Claim filed on November 28, 2012 was one month late, this delay was nevertheless, "reasonable."

Respondents argue that despite the fact that petitioner alleges that he was arrested July 28. 2012 and "remained at Central Booking until July 29, 2012 at 11 pm," (id. at ¶ 6), and his case was dismissed on November 8, 2012 (id. at ¶ 6), he provides absolutely no physical proof of the alleged accrual dates of his claims. Nor, has he provided any documentation regarding the disposition of his case. Respondents also argue that while petitioner's Notice of Claim appears to have been marked "Received" by the City on or about November 28, 2012, he still waited approximately five months later to make the instant O.S.C. Respondents also emphasize that petitioner's attorney makes no effort to explain this added 140 day delay. Respondents also argue that while courts are afforded broad discretion in deciding whether to grant a late Notice of...