Where on an application for leave to serve late notice of claim, the proposed notice of claim alleges distinct claims for injuries, the distinct claims must be separately assessed under the guidelines that govern the court's exercise of discretion. Here, that assessment requires that leave be granted with respect to claims arising out of an arrest and imprisonment, but be denied with respect to claims arising out of a motor vehicle collision incident to the arrest.

In support of his application for leave to serve late notice of claim, Petitioner submits his own affidavit. He avers that on July 20, 2006, he was unlawfully arrested by respondent NYPD. After his arrest, Petitioner allegedly sustained personal injuries while he was a passenger in an [*2]NYPD vehicle that ran into a parked car. He asserts that "the incident in which I was injured was reported to the defendants the same day it happened, by the New York Police Department and Defendants (sic) own employees that came out to investigate the incident." Petitioner avers that, after the accident, he was transported to the emergency room by police officers, and hospitalized for three days, before being jailed at Rikers Island for an additional seven days. Petitioner made the instant application on July 30, 2007. In his proposed Notice of Claim, he alleges, among other things, various civil rights violations, unlawful imprisonment, unlawful arrest, excessive force, unlawful search and seizure, and negligence.

A notice of claim must be served within 90 days after the claim arises (see General Municipal Law § 50-e[1][a]), though a court may grant the claimant leave to serve late notice of claim if leave is sought within one year and 90 days of accrual (see General Municipal Law § 50-e[5].) False arrest and unlawful imprisonment claims accrue upon the claimant's release from custody (see Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]), and civil rights claims accrue when the proceeding is terminated in favor of the claimant (see McElveen v Police Department of the City of New York, 70 AD2d 858, 859 [1st Dept 1979].) Claims based upon negligent operation of a motor vehicle accrue on the date of the accident. (See, e.g., Small v New York City Trans. Auth., 14 AD3d 690, 691 [2d Dept 2005]; Rabanar v City of Yonkers, 290 AD2d 428, 428-29 [2d Dept 2002].) Here, Petitioner fails to supply the date when he was released from prison, but based upon his affidavit, it appears that it was on July 30, 2006. Petitioner fails to supply the date when the criminal proceedings against him terminated in his favor. Since at the least Petitioner failed to serve a notice of claim within 90 days of accrual of his claims arising out of his arrest and imprisonment, as well his claims arising out of the motor vehicle accident, the instant application is necessary for compliance with General Municipal Law § 50-e(5).

In determining whether to grant an application for leave to serve late notice of claim, the court considers whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality's maintaining its defense on the merits. (See Nieves v Girimonte, 309 AD2d 753, 755 [2d Dept 2003].) The most significant factor is whether the municipality acquired actual knowledge of the essential facts constituting the claim within the 90-day period or within a reasonable time thereafter. (See Casias v City of New York, 39 AD3d 681, 682 [2d Dept 2007].)

As his excuse, Petitioner claims, in conclusory fashion, that his injuries prevented him from timely serving a notice of claim. In the proposed Notice of Claim, Petitioner claims to have sustained a dislocated right hip, as well as psychological and emotional injuries. In support of the application, Petitioner submits an Emergency Department record from Long Island College Hospital, indicating that Petitioner's chief complaint was that he was "anxious." Petitioner fails to submit any medical documentation of his injuries, and fails to explain how any of his injuries prevented him from serving a notice of claim. (See Moran v New York City Hous. Auth., 224 AD2d 257, 257-258 [2d Dept 1996]; Green v New York City Hous. Auth., 180 AD2d 586, 587 [*3][1st Dept 1992].) Even though Petitioner failed to proffer a reasonable excuse, it is not determinative of his application. (See Casias v City of New York, 39 AD3d at 682.)

Petitioner contends that Respondents acquired actual knowledge of the essential facts constituting the claim within the 90-day period because "the incident in which I was injured was reported to the defendants the same day it happened, by the New York Police Department and Defendants (sic) own employees that came out to investigate the incident." He asserts that "the investigators and police officers were present and actually involved in the incident that resulted in my injuries." In support, Petitioner submits a New York Motor Vehicle No-Fault Insurance Cover Letter, dated April 3, 2007, from the City of New York Office of the Comptroller, acknowledging "receipt of notice that you may have sustained injuries in the above captioned accident." Petitioner fails to submit a copy of his No-Fault claim to indicate what information he provided to the City about his claim, and fails to provide proof of service as to when the City received Petitioner's claim for No-Fault benefits. Petitioner also submits the aforementioned hospital record from Long Island College Hospital, to the effect that he was escorted to the hospital by respondents P.O. Sullivan and P.O. Joseph on July 22, 2006, which is two days after the incident.

With respect to Petitioner's claims arising out of his arrest and imprisonment, courts have held that police involvement, including their preparation and filing of reports incident thereto, is sufficient to satisfy the actual knowledge and lack of prejudice factors. (See Nunez v City of New York, 307 AD2d at 220; Grullon v City of New York, 222 AD2d 257, 258 [1st Dept 1995].) Although the City claims that "it will be substantially prejudiced if Petitioner is permitted to serve a late notice of claim," it points to nothing in this case that suggests substantial prejudice. Considering the public interest in having police misconduct cases determined on their merits, the Court is prepared to grant that portion of the Petition with respect to the claims arising out of the arrest and imprisonment. But, since Petitioner asserts that the criminal proceedings against him were resolved in his favor, all criminal records would presumably be sealed, and sealed files would prejudice the investigation of Petitioner's claims. (See Matter of Ragland v New York Hous. Auth., 201 AD2d 7, 13-14 [2d Dept 1994].) As such, leave to serve late notice of claim will be contingent upon Petitioner's providing appropriate consent and authorization for the unsealing of the criminal files. (See id.)

With respect to Petitioner's claims arising out of the motor vehicle accident, Petitioner essentially contends that the City obtained actual knowledge of the essential facts constituting the claim because a police officer was negligent in operating the vehicle; officers from the police department reported to the scene of the accident and conducted an investigation immediately afterward; the police department was involved in Petitioner's arrest, imprisonment, and prosecution; and the police officers transported Petitioner to the hospital immediately after the accident.

"Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts constituting the claim." (See Caselli v City of New York, 105 AD2d 251, 255 [2d Dept 1984].) This is so [*4]because "[a] municipality often will have numerous employees assigned to separate and diverse agencies or departments, and the purpose of the statutory notice of claim requirement would simply not be fulfilled if all information obtained by municipal employees, officers or agencies in the regular course of their business was to be imputed to the municipality." (Id., at 255.)

Unlike claims arising out of an arrest, a municipal employee's involvement in an accident has only been held to satisfy the actual knowledge and lack of prejudice factors where other factors are present. (See, generally, Matter of Vasquez v City of Newburgh, 35 AD3d 621, 623 [2d Dept 2006]; Gibbs v City of New York, 22 AD3d 717, 719 [2d Dept 2005]; Matter of Spaulding v Cobleskill Richmondville Central School District, 289 AD2d 860, 861 [3d Dept 2001]; Ayala v City of New York, 189 AD2d 632, 633 [1st Dept 1993]; Flynn v City of Long Beach, 94 AD2d 713, 714 [2d Dept 1983]; Whitehead v Centerville Fire District, 90 AD2d 655, 655-656 [3d Dept 1982].)

In cases where a claimant has contended that an accident or aided report provided actual knowledge to the City, courts have required the presence of "other factors in addition to the mere existence of an accident or aided report." (See Caselli v City of New York, 105 AD2d at 257.) Similarly, where, as here, a petitioner claims that the municipal employee's involvement in the underlying accident provided actual knowledge, courts have required that other factors be present (see id.,at 255), such as records that were generated (see, e.g., Ayala v City of New York, 189 AD2d at 633); the promptness, scope and duration of any investigation (see, e.g., Matter of Vasquez v City of Newburgh, 35 AD3d at 623; Flynn v City of Long Beach, 94 AD2d at 714; King v City of New York, 90 AD2d 714, 715 [1st Dept 1982]); and the seriousness of injuries or damage resulting from the accident (see Matter of Spaulding v Cobleskill Richmondville Central School District, 289 AD2d at 860-61; Matter of McAdams v Police Department of the Town of Clarkstown, 184 AD2d 847, 848 [3d Dept1992].)

In Matter of Vasquez v City of Newburgh (35 AD3d 621), for example, involving an infant pedestrian knockdown by a vehicle owned by a municipality and operated by a municipal employee, the court found that the petitioner established actual knowledge. The court noted that the accident involved a City-owned vehicle operated by a civilian employee of the City's police department; that the police department responded to the scene and conducted an immediate investigation assisted by a New York State Police Accident Reconstruction Unit; and that an Accident Review Board investigation was also conducted. The court found that "the overall circumstances" supported an "inference that the City effectively received actual notice of the essential facts constituting the claim." (See id., at 623.)

In Whitehead v Centerville Fire District (90 AD2d 655), the petitioner established actual knowledge in a case where his vehicle was struck by a fire engine being driven by the captain of the fire company as it was responding to a call for assistance. The court noted that the defendant's employees were present and involved in the collision itself; that the occurrence was immediately reported by defendant to the Ulster County Fire Control; and that the claimant had submitted a no-fault claim with supporting medical documentation to defendant's insurance carrier, which was also claimant's no-fault insurance carrier. [*5]

In the instant case, Petitioner fails to submit a police accident report, or any other evidence that the City of New York conducted any investigation of the motor vehicle accident. Moreover, in order for a police accident report to show that the City had actual knowledge of the essential facts underlying the claim, the report must suggest a connection between the happening of the accident and negligence on the part of the City. (See Aliberti v City of Yonkers, 302 AD2d 456, 456-457 [2d Dept 2003]; Meehan v City of New York, 295 AD2d 581, 582 [2d Dept 2002]; Saafir v Metro-North Commuter Railroad Co., 260 AD2d 462, 463 [2d Dept 1999]; Caselli v City of New York, 105 AD2d at 257.)

Although Petitioner claims that he was transported to the hospital by police officers immediately after the accident (see, e.g., King v City of New York, 90 AD2d at 715), he fails to provide any hospital documentation on the date of the accident. The only hospital record submitted is dated July 22, 2006, which is two days after the accident. Moreover, the hospital record makes no mention of the motor vehicle accident or any physical injuries sustained by Petitioner.

There is no indication on this record that Petitioner's injuries were so severe, or that the damage to the vehicle was so substantial, that the City would have actual knowledge of the facts constituting the claim by virtue of the involvement of the police officers and subsequent investigation. (See, e.g., Matter of Spaulding v Cobleskill Richmondville Central School District, 289 AD2d at 861; Matter of McAdams v Police Department of the Town of Clarkstown, 184 AD2d 847, 848 [3d Dept 1992].)

Petitioner submits no other evidence of circumstances that would support an "inference that the City effectively received actual notice of the essential facts constituting the claim." (Matter of Vasquez v City of Newburgh, 35 AD3d at 623.) As such, Petitioner has failed to establish that Respondents had actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter.

The fact that the municipality may be deemed to have acquired actual knowledge of the essential facts constituting Petitioner's claims arising out of his arrest and imprisonment does not mean that the City would be deemed to have actual knowledge of Petitioner's claims arising out the motor vehicle accident . This is so even though Petitioner was in the custody of the police department when the accident occurred. Without any evidence to the contrary, it does not seem that an investigation conducted in connection with the criminal proceedings against Petitioner would encompass Petitioner's claims regarding the motor vehicle accident.

Moreover, a claim of negligence in the operation of a motor vehicle is an entirely different theory of liability for Petitioner's claimed injuries, and must be considered separately from his claims arising out of his arrest and imprisonment. Courts have not permitted claimants to raise new theories of liability that were not included in a claimant's notice of claim, even though the new theory of liability relates to the same underlying facts. (See, e.g., Scott v The City of New York, 40 AD3d 408, 409-410 [1st Dept 2007]; Garcia v O'Keefe, 34 AD3d 334, 335 [1st Dept 2006]; Dixon v Village of Spring Valley, 6 AD3d 489, 490 [2d Dept 2004].) That actual [*6]knowledge may be imputed to the City on some of Petitioner's claims, namely those arising out of his arrest and imprisonment, does not result in imputation of actual knowledge of Petitioner's claims arising out of the motor vehicle accident.

Where a claimant has not shown either a reasonable excuse for the delay or actual knowledge within the 90-day period or a reasonable time thereafter, it is unnecessary to consider prejudice. (See Hebbard v Carpenter, 37 AD3d 538, 540-41 [2d Dept 2007]; Matter of Carpenter v City of New York, 30 AD3d 594, 595-96 [2d Dept 2006].)

Accordingly, Petitioner's application is granted only to the extent that, within thirty (30) days after entry of this order, Petitioner may serve upon Respondents a notice of claim alleging claims arising solely out of his arrest and imprisonment and related civil rights violations, together with the appropriate consents and authorizations to unseal the criminal files and records. The Petition is otherwise denied; specifically, Petitioner is denied leave to serve a notice of claim alleging injuries resulting from negligence in the operation of the motor vehicle.

August 28, 2007

Jack M. Battaglia

Justice, Supreme Court