[*1]
Smith v County of Suffolk
2008 NY Slip Op 50810(U) [19 Misc 3d 1122(A)]
Decided on April 9, 2008
Supreme Court, Suffolk County
Sgroi, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2008
Supreme Court, Suffolk County


Robert Lee Smith, Petitioner,

against

The County of Suffolk, Suffolk County Police Department, Suffolk County District Attorney and District Attorney Thomas Spota, Respondents.




34800-2007



Harold Chetrick, P.C.

Attorneys for Petitioner

60 East 42nd Street

Suite 445

New York, New York 10165-0445

Christine Malafi, Esq.

Kelly Green, Esq.

Attorney for Respondents

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788-0099

Sandra L. Sgroi, J.

ORDERED that the proceeding commenced by the Petitioner Robert Lee Smith for leave to serve a late Notice of Claim pursuant to General Municipal Law § 50 (e) is denied. Enter Judgment.

The Petitioner, Robert Lee Smith, by his attorney, seeks the permission of the Court to file a late Notice of Claim against the Respondents, the County of Suffolk, Suffolk County Police Department, Suffolk County District Attorney and District Attorney Thomas Spota. According to the Petition, on or about June 7, 2007, at approximately 6:00 p.m., the Petitioner, Robert Lee Smith, was arrested at 10 Mill Lane, Medford, New York by several Suffolk County Police Officers, pursuant to an arrest warrant for the charge of petit larceny, a violation of the Penal Law. It is alleged in both the affidavit of Smith and the affirmation of his attorney submitted in support of this motion, that the Petitioner, at that time, was advised that the Suffolk County Police Officers were with the warrant squad and that there was an outstanding warrant for his arrest for the charge of petit larceny. The Petitioner allegedly told the Suffolk County Police Officers that he did not commit the criminal act and that his brother, Howard Smith, Jr., committed the petit larceny. An arrest warrant had not been issued for Howard Smith, Jr.'s arrest. The petit larceny allegedly consisted of the wrongful taking of four bags of shrimp from a supermarket.

It is further alleged in this proceeding that the Suffolk County Police Officers then escorted the Petitioner to the Petitioner's residence at 9 Mill Lane, Medford, New York in order to permit him to retrieve his medications for cholesterol, depression, high blood pressure and diabetes before he was brought to the precinct. Howard Smith, Jr. was present at this location and it is alleged that Howard Smith, Jr. also told the police officers that he committed the petit larceny not his brother, Robert Lee Smith. There is no dispute that the name on the arrest warrant was that of Robert Lee Smith and it was Robert Lee Smith who was arrested on June 7, 2007. The Notice of Claim and the Petition are silent concerning any other circumstances surrounding the issuance of this warrant.

According to the attorney for the Petitioner, Smith was "ill treated" by the Suffolk County Police and this same statement is contained in the proposed Notice of Claim. However, the Petitioner's attorney also states when the Petitioner was feeling sick after he was arrested, he was removed from the police van and given orange juice. The Petitioner was released in his own recognizance the next day, June 8, 2007, at approximately 5:00 p.m. after he was arraigned by a District Court Judge. Therefore, there are no facts in the Notice of Claim or in the papers submitted that would support the conclusion that the Petitioner was "ill treated" by the Respondents, with the exception of the fact that he was arrested and detained for less than 24 hours pursuant to an arrest warrant.

It is further alleged that the Petitioner made approximately two to three further Court appearances following the arrest until all charges were finally dismissed in the Suffolk County District Court, with the consent of the Suffolk County District Attorney, on September 12, 2007. Neither the dates of those interim appearances nor what transpired at those interim appearances have been [*2]provided to the Court. It is unclear to this Court whether the Petitioner is claiming that those interim scheduled Court appearances also resulted in alleged actionable claims. If actions of the Respondents at those interim Court appearances are alleged to be tortious, a Notice of Claim would be required for those incidents. To the extent that those claims arose before August 17, 2007, it appears that a late Notice of Claim would be required.

It is alleged that Harold Chetrick, Esq., the attorney for the Petitioner herein, was retained on November 4, 2007, and on that same day, the Petitioner signed an eleven page typewritten affidavit that is attached to this order to show cause as a supporting document. The twelve page affidavit of Harold Chetrick, Esq., also attached as a supporting document to the Order to Show Cause, is dated November 4, 2007.

The Order to Show Cause was submitted to Special Term in Riverhead on November 7, 2007 and assigned to Justice Kerins. Justice Kerins recused himself from consideration of this matter on November 27, 2007 and the case was reassigned to this Court by Special Term. The unsigned Order to Show Cause was sent from Riverhead to Justice Sgroi's Chambers located in Central Islip on or about November 28, 2007, and Justice Sgroi signed the Order to Show Cause on December 3, 2007. Somehow, when the Order to Show Cause was returned to the Special Term Part of Supreme Court after service upon the County, the supporting papers either were not included with the Order to Show Cause or the supporting papers were removed and separated by Court personnel. As a result, this matter was further delayed because Chambers was required to request copies of all papers from the attorneys prior to marking this matter "submitted" on the motion calendar.

It is alleged in the Order to Show Cause that the Petitioner's claims against the Respondents accrued on June 8, 2007, when Robert Lee Smith was arrested by the Suffolk County Police. The Petitioner alleges that the Respondents have not been prejudiced by the delay in filing the Notice of Claim, that the information and facts involved in this matter are available, that the Respondents still may conduct an investigation of the claims contained therein and that, in any event, the Respondents had actual notice of the claims of the Petitioner.

The Petitioner does not state when he became aware of the statutory requirement that a Notice of Claim must be served on the Respondents within ninety days of the date that the claims accrued. While the Petitioner has stated the date, November 4, 2007, that he retained Harold Chetrick, Esq. as legal counsel to bring this proceeding, he has not stated the date that he first sought the advice of legal counsel on this matter and the underlying civil claims.

The Respondents have opposed the relief requested in the Order to Show Cause with an affirmation by their attorney. The affirmation of the attorney for the Respondents alleges that the ninety day period within which the Petitioner could file a Notice of Claim has run, the Petitioner has offered no excuse for the failure to timely serve and file a Notice of Claim, the Respondents did not have actual notice of the Claims and that the Petitioner has failed to establish that the Respondents would not be prejudiced by the delay in the filing of the Notice of Claim. [*3]

In the reply, the attorney for the Petitioner alleges that the Respondents have not been prejudiced by the approximate three month delay in filing the Notice of Claim. Further, the attorney for the Petitioner re-states the allegation of the Petitioner that "he was more concerned with the criminal charges that were pending against him and was not aware of the notice of claim requirement." (Reply Affidavit of attorney for Petitioner). Finally, the Petitioner alleges that the Respondents did acquire actual knowledge of the facts herein prior to the expiration of the time to file a Notice of Claim.

The proposed Notice of Claim attached as an unnumbered Exhibit to the Order to Show Cause lists the causes of action the Petitioner seeks to bring against the Respondents and those claims include "false arrest, false imprisonment, malicious prosecution, abuse of process, assault and battery, harassment, aggravated harassment, intentional tort, emotional distress and loss of services***" (see, Petitioner's Notice of Claim).

While some of the claims of the Petitioner did not become ripe until the dismissal of the criminal charges and thus the service of the Notice of Claim on the County in November of 2007 would be timely for those causes of action, other claims of the Petitioner accrued at an earlier time on June 8, 2007, the day that the Petitioner was released from custody. With regard to those claims that accrued on June 8, 2007, the time within which to serve a Notice of Claim expired on September 6, 2007, six days prior to the dismissal of all criminal charges pending against Smith. To the extent that we are addressing the claims that accrued on September 12, 2007, the Petitioner's attorney alleges that he served a timely Notice of Claim on November 15, 2007, with Suffolk County.

A cause of action to recover damages for malicious prosecution arises only after the Plaintiff has been acquitted of the subject charges (see, Peresluha v. City of NY, 60 AD2d 226, 400 NYS2d 818). The cause of action for malicious prosecution accrued when the criminal action was terminated in the Petitioner's favor (see, Roman v. Comp USA, Inc., 38 AD3d 751, 832 NYS2d 270). The claim for abuse of process, emotional distress and loss of services also began to run upon dismissal of the criminal action (see, Blanding v. City of New York, 18 Misc 3d 1146(A), —- NYS2d ——, 2008 WL 648365, 2008 NY Slip Op. 50455U).

Therefore, the Petitioner need not obtain leave to serve a late Notice of Claim for these causes of action.

The causes of action for false arrest, assault and battery, intentional tort and false imprisonment accrued either on June 7, 2007 or on June 8, 2007, and a late Notice of Claim would be required to proceed with these claims (see, Charnis v. Shohet, 2 AD3d 663, 768 NYS2d 638). Depending on the allegations of the Petitioner, the claims of harassment and aggravated harassment may have accrued either on June 8, 2007, or, at the latest on September 12, 2007, when the criminal charges were dismissed, if the Petitioner is complaining that claims arose as a result of interim appearances. As noted previously, those claims that accrued on or before August 17, 2007, would also require a late Notice of Claim, because the Notice of Claim was served in November of 2007.

[*4]General Municipal Law § 50-e requires that a Notice of Claim be served within ninety days after a tort claim arises against certain public and municipal corporations including the County of Suffolk and the other Respondents named herein. This requirement is intended to protect those public and municipal corporations against stale tort claims, and to provide them with an opportunity to timely and efficiently investigate claims (see Matter of Tumm v. Town of Eastchester, 8 AD3d 581, 582, 779 NYS2d 217).

If the Petitioner failed to timely serve a Notice of Claim, this Court may permit the service of a late notice of claim pursuant to the provisions of General Municipal Law § 50-e(5) under certain circumstances.[FN1] The relevant factors for the Court to consider when making a determination as to whether to permit the late filing of a Notice of Claim include, but are not limited to, (1) whether the motion presents a reasonable excuse for failing to serve a timely Notice of Claim, (2) proof that the municipality acquired actual knowledge of the facts constituting the claim within ninety days from its accrual or a reasonable time thereafter, and (3) a showing by the Petitioner that the delay would not substantially prejudice the municipality in maintaining its defense on the merits (see, Rush v. County of Suffolk, 35 AD3d 619, 826 NYS2d 640; General Municipal Law §50-e(5); see also, Matter of Padovano v. Massapequa Union Free School Dist., 31 AD3d 563, 818 NYS2d 274, citing Williams v. Nassau County Med. Ctr., 6 NY3d 531, 814 NYS2d 580, 847 NE2d 1154; Matter of Molloy v. City of New York, 30 AD3d 603, 818 NYS2d 512; Matter of Henriques v. City of New York, 22 AD3d 847, 803 NYS2d 194). While the merits of the claims are not generally evaluated, it may be considered, along with other facts, in some circumstances (see, Matter of Catherine G. v. County of Essex, 3 NY3d 175, 181, 785 NYS2d 369, 818 NE2d 1110; Caldwell v. 302 Convent Ave. Housing Dev. Fund Corp., 272 AD2d 112, 114, 707 NYS2d 423). [*5]

The presence or absence of any one of the foregoing factors is not determinative as to the application and the Court may consider other factors in addition to those listed in the statute(see, Matter of Dubowy v. City of New York, 305 AD2d at 321, 759 NYS2d 325; Chattergoon v. New York City Hous. Auth., 197 AD2d 397, 398, 602 NYS2d 381). The absence of a reasonable excuse for a delay in filing is not, standing alone, fatal to the application (see, Matter of Ansong v. City of New York, 308 AD2d 333, 334, 764 NYS2d 182; Weiss v. City of New York, 237 AD2d 212, 213, 655 NYS2d 34).

The Petitioner in both his affidavit and the affirmation of his attorney allege that the Respondents have not been prejudiced by the delay occasioned by failure to file the Notice of Claim within ninety days. The Court recognizes that the delay in filing the Notice of Claim herein was not lengthy but it is also cognizant of the fact that the Appellate Courts have, under some circumstances, failed to allow a late Notice of Claim where the delay was only two months (see, Lorseille v. NY City Hous. Auth., 295 AD2d 612, 744 NYS2d 880; New York Practice, New York Law of Torts § 17:27, Actions against municipal corporations—Leave to file a late notice of claim, 2007).

The term "actual knowledge" used in the cases means actual knowledge of the "essential facts" (see, Grande v. City of New York, —- NYS2d ——, 2008 WL 387996, 2008 NY Slip Op. 01344, N.Y.A.D. 2 Dept. Feb 13, 2008). Often in negligence actions involving personal injury, the injury and the location of the injury may give the municipal corporation knowledge of the "essential facts" (see, Gibbs v. City of New York, 22 AD3d 717, 804 NYS2d 393). That is not true in all cases, and it is not true herein. While County officials may have known that the Petitioner was arrested and that the charges were ultimately dismissed, there is no indication that they were on notice that those actions were done under circumstances that would result in civil tort claims.

While all of the factors in General Municipal Law § 50(e) have been considered by this Court in determining this application, the Appellate Division, Second Department in Casias v. City of New York, (39 AD3d 681, 683, 833 NYS2d 662) recently stated:

The statute enumerates various factors relevant to an application for an extension, but it sets one apart from all the others: "the court shall consider, in particular, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within the [90-day period] or within a reasonable time thereafter." Other factors, listed under the category "all other relevant facts and circumstances" (General Municipal Law § 50-e[5] ) essentially require a reasonable excuse for the delay and a showing of lack of prejudice to the public corporation in its defense on the merits ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 AD3d 758, 759, 820 NYS2d 81; Matter of Sica v. Board of Educ. of City of NY, 226 AD2d 542, 640 NYS2d 610; Matter of Shapiro v. County of [*6]Nassau, 208 AD2d 545, 616 NYS2d 786). None of these factors is "necessarily determinative" ( Matter of Dell'Italia v. Long Is. R.R. Corp, supra ).


In a further enunciation of the guidelines that the Courts must apply in these applications, the Appellate Division, First Department in Goodwin v. New York City Housing Authority, 42 AD3d 63, 834 NYS2d 181) provided that;
***the notice of claim statute, General Municipal Law § 50-e, is to be applied flexibly. The Court has reiterated that flexibility is key " so as to balance two countervailing interests: on the one hand protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error.'(italics supplied by the Court, Rosenbaum v. City of New York, 24 AD3d 349, 806 NYS2d 543, rev'd on other grounds, 8 NY3d 1, 828 NYS2d 228, 861 NE2d 43). This Court has further held that the statute was not meant to be used as "a sword to cut down honest claims but merely as a shield to protect municipalities against spurious ones." (Lomax v. New York City Health and Hosps. Corp., 262 AD2d 2, 4, 690 NYS2d 548; see also, Matter of Quiroz v. City of New York, 154 AD2d 315, 316, 546 NYS2d 604).


The late retention of counsel alone is not an excuse for failure to serve a notice of claim, as there must be a satisfactory reason for why counsel was retained late (see, Matter of Dube v. City of New York, 158 AD2d 457, 551 NYS2d 50). Other than the cursory statement that the Petitioner was unaware of the statutory requirement that a Notice of Claim was necessary, an explanation of the lateness for retaining Harold Chetrick, Esq. has not been explained.

While a balancing test of all relevant factors will be employed in deciding whether to grant an application to permit the filing of a late Notice of Claim, the most important factor remains the Respondents' actual knowledge of the "essential facts" constituting the Petitioner's meritorious claim, acquired within the ninety day time period to file a Notice of Claim or within a reasonable time after the running of the time to file a Notice of Claim.

Here, there is no showing that the Respondents had actual knowledge of the facts surrounding the claims of the Petitioner. In order to satisfy General Municipal Law § 50-e and show that a municipal entity had notice, the Petitioner must demonstrate, not knowledge of the occurrence or the alleged wrong, but rather knowledge of the nature of the claim of the Petitioner (see, Pico v. City of New York, 8 AD3d 287, 777 NYS2d 697; Matter of Vitali v. City of New York, 205 AD2d 636, 613 NYS2d 270; Santana v. W. Reg'l Off-Track Betting Corp., 2 AD3d 1304, 770 NYS2d 258 lv. to app'l den'd 2 NY3d 704, 778 NYS2d 774, 811 NE2d 36). While the Police certainly were aware that the Petitioner was arrested on June 7, 2007, there is no showing that [*7]prior to the expiration of the time to file a Notice of Claim, any of the Respondents were aware of the new allegations contained in this Order to Show Cause that a tort was committed either during the arrest or during the subsequent time that Petitioner was detained by the Police after the arrest (see, McAllister v. County of Nassau, 202 AD2d 670, 609 NYS2d 294; see also, Matthews v. New York City Housing Authority, 180 AD2d 669, 580 NYS2d 61). For example, there is no allegation in the Order to Show Cause that the Respondents were aware that the arrest was unlawful (other than Petitioner's and Petitioner's brother's statements) or that some negligent, tortious or otherwise actionable wrong involving the Petitioner occurred on June 7 or June 8, 2007.

The Court further notes that the proposed Notice of Claim attached as an Exhibit to the Order to Show Cause does not provide a description of the alleged "severe" injuries incurred by the Petitioner and, other than alleging that the Petitioner was handcuffed by the Police when he was arrested, it does not detail any other alleged wrongful acts in addition to the false arrest and false imprisonment that occurred while Petitioner was under arrest (see, Secard v. Department of Social Servs., 204 AD2d 425, 612 NYS2d 167). The items of damage allegedly suffered by the Petitioner listed in the Notice of Claim are similarly uninformative and vague. The proposed Notice of Claim alleges in item 4 that the Petitioner "sustained serious and severe injuries. He was rendered sick, sore, lame and disabled; was caused to suffer, did suffer, and upon information and belief, will continue to suffer great bodily and mental pain and anguish. A complete diagnosis of all injuries sustained has not as yet been ascertained."

This proposed Notice of Claim as drafted fails to aid the Respondents in the task of investigating the circumstances surrounding the alleged injury, the time period when the injury or injuries occurred and the nature of the injuries allegedly suffered by the Petitioner as a result of the actions of the Respondents (see generally, Caselli v. City of New York, 105 AD2d 251, 252, 483 NYS2d 401). While a Notice of Claim does not have to contain the detail of a Bill of Particulars, this proposed Notice of Claim lacks allegations to even connect the Respondents Suffolk County District Attorney and District Attorney Thomas Spota with the arrest and subsequent custodial restriction of the Petitioner in June of 2007.

Since the merit of the underlying claims is a factor germane to the Court's determination, that issue will be addressed in determining the application( Roberto v. Town of Hempstead, 850 NYS2d 914, 2008 NY Slip Op. 01551, N.Y.A.D. 2 Dept. Feb 19, 2008; Johnson v. Kings County District Attorney's Office, 308 AD2d 278, 763 NYS2d 6)

To the extent that the Petitioner is attempting to allege general negligence on the part of the police officers in making this arrest, those claims are dismissed as being without merit. It has been stated that: [*8]
"[a] plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence * * * but must proceed by way of the traditional remedies of false arrest and imprisonment' " ( Antonious v. Muhammad, 250 AD2d 559, 559-560, 673 NYS2d 158, quoting Boose v. City of Rochester, 71 AD2d 59, 62, 421 NYS2d 740).


Further, as a matter of law, where an arrest is justified pursuant to CPL 570.34, it is privileged ( see Heath v. State of New York, 229 AD2d 912, 645 NYS2d 366 ). "An arrest made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person is privileged" ( Boose v. City of Rochester, 71 AD2d 59, 62, 421 NYS2d 740; at 66, 421 NYS2d 740, citing Broughton v. State of New York, supra ). A finding of justification pursuant to CPL 570.34 "serves as a complete defense to a claim for false arrest and imprisonment and eliminates an essential element of a claim for malicious prosecution" (Heath v. State of New York, supra at 912, 645 NYS2d 366). There is no allegation in these papers that the arrest warrant was not facially valid.

Although the merits of the claims of the Petitioner are questionable, this decision is based upon the failure of the Respondents to acquire actual knowledge of the essential facts underlying the claims within ninety days of the date of the occurence. Recently, the Appellate Division, Second Department in Felice v. Eastport/South Manor Cent. School Dist., (_A.D.3rd _, 851 NYS2d 218, 2008 NY Slip Op. 00691, N.Y.A.D. 2 Dept. Jan 29, 2008) has had the opportunity to further elucidate what the terms "actual knowledge of the facts" means. In order for the Court to excuse the late filing of the Notice of Claim, it is simply not enough that the municipal Respondents know that the incident occurred, that its employees were involved and that there was an injury to the Petitioner because "***the knowledge obtained by a public corporation of facts about an accident and the resulting injury that do not amount to the essential facts constituting the claim" (Felice v. Eastport/South Manor Cent. School Dist., supra ). As noted previously, the Respondents must be aware of the legal theory that connects the injury and the accident for them to have "essential facts" as that term has been used in the Appellate cases (Felice v. Eastport/South Manor Cent. School Dist., supra ; see also, Casias v. City of New York, 39 AD3d 681, 833 NYS2d 662).

Further, in addition to the above, the Petitioner seeking leave to serve a late Notice of Claim pursuant to General Municipal Law § 50-e(5) has the burden of showing that the delay will not substantially prejudice the public corporations in maintaining a defense on the merits ( see, Jordan v. City of New York, 41 AD3d 658, 838 NYS2d 624).

While this Court does not seek to minimize the Petitioner's loss of liberty for approximately one day in June of 2007, here there is no proof that the Respondents were aware of any physical injury incurred by the Petitioner while he was in custody and in fact, the Suffolk Police Officers [*9]went to great lengths to insure that the Petitioner had all of his medication, that he be given orange juice when he felt ill and that he be timely arraigned after the warrant was executed. There is no allegation that the warrant failed to name the Petitioner or that the Petitioner was emotionally or physically mistreated when he was arrested.

Therefore, there is no evidence here that the Respondents had notice of the "essential facts" underlying the causes of action that accrued on June 8, 2007 prior to the expiration of the ninety day period provided for in General Municipal Law § 50-e. The Petitioner is an adult, he had access to legal advice and he is not suffering from any medical disability that would have prevented him from filing a Notice of Claim in a timely manner. The Petitioner's alleged ignorance of the Notice of Claim requirement is not an acceptable excuse warranting permission to serve late Notice of Claim upon the Respondents in this case (see, Weber v. County of Suffolk, 208 AD2d 527, 616 NYS2d 807).

The Court finds that the Petitioner herein has failed to offer a reasonable excuse for his failure to file a Notice of Claim within ninety days of accrual of the claims that accrued on June 8, 2007 (see, Palmer v. City of New York, 226 AD2d 149, 640 NYS2d 92; Matter of Ragin v. City of New York, 222 AD2d 678, 636 NYS2d 83). In light of the analysis herein, the motion of the Petitioner for leave to file a late Notice of Claim must be denied.

Dated:________________________Sandra L. Sgroi, J. S. C.
Footnotes


Footnote 1:General Municipal Law § 50-e(5) states in relevant part:

In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.