[*1]
Sargent v Nassau County Police Dept.
2004 NY Slip Op 51232(U)
Decided on August 5, 2004
Supreme Court, Nassau County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 5, 2004
Supreme Court, Nassau County


ALEXANDRIA SARGENT, JANELLE SARGENT and SHATAVIA SARGENT, Plaintiffs,

against

NASSAU COUNTY POLICE DEPARTMENT, THE COUNTY OF NASSAU and NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, Defendants.




5873/04

Stephen A. Bucaria, J.

FACTS

After an arrest on November 21, 2002, the petitioners went to trial in District Court (People v Sargent), in which they were acquitted on October 1, 2003. On January 27, 2004, the petitioners met with an attorney to commence a civil suit against the respondents for false arrest, malicious prosecution, wrongful and prolonged detainment, and resulting financial hardships.

PETITIONERS' CONTENTIONS


The petitioners assert that they all offered witnesses to attest to their innocence, but the police failed to, or refused to investigate the evidence. The petitioners also contend that the prosecutor failed to consider exculpatory evidence that was available and could have prevented the trial. At the conclusion of the trial, when the petitioners were acquitted, the petitioners state that they had difficulty in obtaining an attorney for their civil suit. The petitioners allege that the County has had access to their records surrounding the essential facts of the claim, and that the County, therefore, will not be substantially prejudiced in its defense of this lawsuit. The petitioners seek to submit late notice of claim, or to deem notice of claim served nunc pro tunc, and for related relief.

RESPONDENTS' CONTENTIONS


The respondents assert that the petitioners' application should be denied because they failed to satisfy the requirements established by the General Municipal Law 50-e (5) and 50-I. The respondents contend that the Court may only extend the time to serve a late notice of claim to one year and ninety days after the claim arose, and since this cause of action allegedly accrued on November 21, 2002, the date of the false arrest, the time to file a late notice has expired, except for the charge for malicious prosecution. The respondents state that the petitioners arrests are not sufficient notice of a claim and thus the County lacked knowledge that the criminal records for the petitioners have been sealed, and the respondents do not have that evidence.

PETITIONERS' REPLY


The petitioners contend that the respondents are attacking the factual merits of the case, though the petition is to file a late notice of claim, and therefore the respondents' challenges are irrelevant at this juncture. The petitioners assert that the respondents cite case law dealing with personal injuries in their reply in opposition, but as this case involves malicious prosecution, that cited case law is irrelevant. The petitioners state that the existence of reports in a municipality's own files is the "functional equivalent of an investigation", and that the respondents have not suffered any prejudice. It is also asserted that the petitioners will [*2]release their sealed records from the criminal trial to the respondents for the purposes of this case. The petitioners further contend that the one year and ninety day statute of limitations on their malicious prosecution claims has not expired, and as the respondents have "actual knowledge" of the events surrounding the petitioners' claim, the petitioners' application ought to be granted.



DECISION


General Municipal Law Section 50-e sets forth requirements to be met by a claimant when commencing a tort action against a public corporation or its employees or officers. Included among the requirements is the provision that a Notice of Claim must be filed with the public entity within ninety days from the time the claim arises (GML Section 50-e).

The petitioners did not serve the required notice within the ninety day period and now seek to file a late notice of claim pursuant to GML 50-e (5). This statute allows the court, at its discretion, to extend the time to serve a notice of claim beyond the ninety day period (see, Matter of Shapiro v County of Nassau, 208 AD2d 545, 616 NYS2d 786, 2nd Dept., 1994).

In permitting a late Notice of Claim, the court utilizes certain criteria in its exercise of discretion: (1) an explanation for the delay in filing a timely Notice of Claim; (2) whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety days or "within a reasonable time thereafter" (see, Goldstein v Clarkstown Central School District, 208 AD2d 537, 616 NYS2d 1010, 2nd Dept., 1994); and (3) whether the late filing has substantially prejudiced the entity's ability to investigate and defend against the claim (see, Goldstein v Clarkstown Central School District, supra). These factors serve as guidelines for the court in applying its discretion.

With respect to the first criterion, the petitioners claim that they had trouble obtaining counsel, and thus they were delayed in filing a Notice of Claim. The respondents argue that there was no excuse for the delay from early February, 2004, when the petitioners retained counsel, to May 3, 2004 when the motion for the instant application was filed. Such a delay is not determinative in and of itself, and the other criteria of the statute must be considered.

Pursuant to GML 50-i, there is a one year and ninety day Statute of Limitation for filing a late notice of claim. This statute of limitation has expired for all charges against the respondents except for the cause of action for malicious prosecution, and thus the Supreme Court lacks the authority to permit a late notice of claim, save for malicious prosecution (see, Pierson v City of New York, 56 NY2d 950, 954; Hey v Town of Napoli, 256 AD2d 803; Perry v City of New [*3]York, 238 AD2d 326, 327).

The second criterion addresses the municipality having actual knowledge of the essential facts of the claim. In the case at bar, the facts for the claim of malicious prosecution were sealed following the petitioners' acquittal. Therefore, the respondents do not have ready access to the essential facts of the case at bar, and with respect to the third criterion, the prejudice faced by the municipality, the defendants do not have access to the records concerning malicious prosecution.

The petitioners have readily offered to unseal their records for the purposes of this lawsuit. According to the Matter of Ragland v New York City Housing Authority (201 AD2d 7, 613 NYS2d 937, 2nd Dept., 1994), the respondents are substantially prejudiced so long as the files are sealed. If the petitioners serve the necessary consents and authorizations pursuant to CPL 160.50 (i)(d) that allow the respondents access to the files, however, the prejudice is seen to dissipate, and granting the late notice of claim would be seen as appropriate only as to the claim for malicious prosecution. (see, Ragland v New York City Housing Authority, supra).

Accordingly, leave to serve a late notice of claim is denied unless the petitioners explicitly authorize the unsealing of all pertinent records in the case of People v Sargent for the purposes of this civil suit to be pursued only for malicious prosecution.

Said authorizations and consents shall be served upon the respondents' attorney within 30 days after service of a copy of this order upon respondents' counsel.

This order concludes the within matter assigned to me pursuant to the Uniform Rules for New York State Trial Courts.

So Ordered.

Dated XXXJ.S.C.