Petitioner Lamel Battle ("Battle") moves by order to show cause dated October 2, 2007, pursuant to General Municipal Law §50-e, for an order granting her leave to file a late notice of claim against the City of New York and Police Officer "John Doe" (collectively the "City") to

include causes of action for false arrest, false imprisonment, assault and battery, negligence,

negligent supervision, hiring and training of police officers, malicious prosecution and violation of claimant's civil rights.

The instant case arises out of an arrest of Battle on November 1, 2006 by police officers from the 88th police precinct for disorderly conduct and resisting arrest. Battle asserts that as a result of the arrest he was caused to sustain serious injury and that his civil rights were violated. Following petitioner's arrest he was held in custody for five (5) days. The certificate of disposition of Battle's criminal charges under penal law §205.30 and 240.30, establishes that on May 1, 2007 Judge Smith dismissed all charges.

Petitioner was required to file a timely notice of claim pursuant to General Municipal Law (GML) §50-e arising from the November 1, 2006 arrest, and relating to the claims of false arrest, assault, battery, negligence, false imprisonment and negligent supervision by January 30, 2007, as the claims accrue from the date of the alleged torts. (Bennett v City of New York, 612 NYS2d 201 {204 AD2d 587} [2d Dept 1994], Jackson v Police Dept. of the City of New York, [*2]119 AD2d 551 [2d Dept 1990]). The claimant did not file the notice of claim until October 1, 2007, eight (8) months late and did not seek permission to file the late notice of claim until November 5, 2007, nine (9) months after the expiration of the GML § 50-e filing deadline.

As to petitioner's other cause of action for malicious prosecution, the claims accrue as of the date of the dismissal of the criminal charges which was on May 1, 2007. (Guzman v City of New York, 236 AD2d 444 [2 Dept 1997], Leung v City of New York, 216 AD2d 444 [1st Dept 1995].) A timely notice of claim for the malicious prosecution claim under GML§50-e needed to be filed by August 5, 2007. If the notice of claim is accepted as valid notice of this claim, it would be fifty six (56) days late from the filing date and ninety (90) days late from the date of the order to show cause.

A Court in its discretion may extend the time under GML § 50-e, to serve a notice of claim. In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. (Acosta v City of New York, 39 AD3d 629 [2nd Dept., 2007], Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept., 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept., 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2nd Dept., 1998]).

Petitioner fails to demonstrate any facts which could be considered as a reasonable excuse for delay in filing a notice of claim. 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.

(Matter of Dube v City of New York, 158 AD2d 457 [2d Dept., 1990], Winter v City of Geneva [4th Dept 1994].) Claimant's contention that he was not aware of the statutory requirement for serving a timely notice of claim is not to be considered as a reasonable excuse for delay. (Astree v New York City Transit Authority, 31 AD3d 589 [2d Dept 2006], Gofman v City of New York, 268 AD2d 588 [2d Dept 2000], Saafir v Metro-North Commuter R. Co. [ 2d Dept 1999]).

In determining whether to permit the filing of a late notice of claim, the presence or

absence of any one factor under GML§ 50-e is not determinative, and the absence of a reasonable excuse for the delay is not necessarily fatal. (Nardi v County of Nassau 18

AD3d 520 [2nd Dept., 2006], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept., 1993].) Consequently, the Court can consider whether the City received actual notice of the facts constituting the claims. [*3]

Petitioner has not demonstrated that the City acquired the actual knowledge of the essential facts of the claims for false arrest, false imprisonment, assault and battery, negligence, negligent supervision, hiring and training of the police officers, and violation of claimant's civil rights. Actual knowledge of the essential facts of the claim must have been acquired by the City, not just knowledge of the occurrence. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept. 1993].) Here petitioner asserts that the City had knowledge of the facts constituting the claim because the police department is in possession of the records of the incident. However, mere knowledge by a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of the claim.

(Caselli v New York, 105 AD2d 251 [2d Dept 1984], Curiel v Town of Thurman, 289 AD2d 737 [3d Dept 2001].) In Caselli, the Court stated;

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

of a claim (see, e.g., Williams v. Town of Irondequoit,

59 AD2d 1049, 1050). 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 (Tarquinio v. City of New York,

84 AD2d 265, 270-271, affd 56 NY2d 950; see, also, Adkins

v. City of New York, 43 NY2d 346, 352). In particular, police

officers regularly respond to the scene of accidents, and they

are generally required to prepare and file reports of such

incidents with their departments. To hold that the existence

of such a report relieves a claimant of the necessity of

complying with the statutory requirements of section

50-e of the General Municipal Law would effectively

vitiate the protections afforded public corporations by

such statutory provisions. (Emphasis added).

Petitioner does not reference any document which shows that the municipality had knowledge of the specific facts in the case. The medical record of the claimants treatment at the time of arrest is attached to the order to show cause, but cannot be analyzed as a document which would establish that the City had the essential facts constituting the claims. Presumably petitioner believes that this record was attached to the police report. Assuming this was the case, it only shows that the claimant had a previous injury to his wrist, that he complained of pain, that the splint was alleged [*4]to have been pulled off while he was in police custody.

Even if the petitioner could establish that the City was on notice of this hospital record, none of these facts notify the City of the essential elements of the claims of false arrest, false imprisonment, assault and battery, negligence, negligent supervision, hiring and training of the police officers asserted against it. Moreover, it was not established that the medical report was in the possession of the police department in order to arguably impart actual knowledge. The Court also finds that a delay of eight months in filing the notice without the City having received the essential facts would be prejudicial to the City.

Addressing the claim of malicious prosecution, the Court also finds that the City did not receive notice of the essential elements of that claim. The petitioner in the notice of claim served on the City does not state any of the details related to the disposition of the criminal charges. Petitioner only attaches a copy of the disposition to the reply papers served on February 15, 2008. Therefore, the Court finds that here the delay of fifty six (56) days in serving the notice of claim with regard to the malicious prosecution claim would be prejudicial because the City did not have the essential elements of the claim within a reasonable time. (Ryder v Garden City School Dist. 277 AD2d 388 [2d Dept 2000]).

Accordingly, the application to serve a late notice of claim is denied in its entirety.

This constitutes the decision and order of the Court.

__________________

Robert J. Miller

May 2, 2008J.S.C.