Petitioner Nicole Preston ( "Preston") moves by order to show cause dated January 2, 2008 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, malicious prosecution, personal injuries, negligence, and a violation of civil rights under 42 USC §1983.

The instant case arises out of an arrest of Preston on February 15, 2007. An incident took place at 417 Baltic Street, in Brooklyn where Preston says she was assaulted, battered, falsely arrested, maliciously prosecuted and received injuries allegedly inflicted by 76th precinct police officers and held in jail for 24 hours.

On May 25, 2007, Preston retained counsel from the offices of Burns & Harris. On July 6, 2007, that office sent a notice of claim to the City. Application by order to show cause for leave to file a late Notice of Claim was not filed until February 14, 2008. At oral argument the Court inquired as to whether there was a dismissal of the underlying criminal case, petitioner's counsel sent a copy of the certificate of disposition to the Court which indicates that the criminal charges under Penal Law Sections 221.20, 221.15, 221.10 and 221.05, (all charges relating to the possession of marihuana), were dismissed on August 31, 2007 by Judge Garnett.

Petitioner was required to file a timely notice of claim arising from the February [*2]15, 2007 incidents relating to the allegations for false arrest, false imprisonment, assault and battery, personal injuries, and negligence by May 16, 2007, as the claims accrue from the date of the alleged torts. (Bennett v City of New York, 612 NYS2d 201 {204 AD2d 587} [2nd Dept 1994], Jackson v Police Dept. of the City of New York, 119 AD2d 551 [2nd Dept 1990]).

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Petitioner was required to file a Notice of Claim on those claims by May 16, 2007. As to the claim for malicious prosecution, that claim accrues from the dismissal of the criminal charges. ( Leung v City of New York [1st Dept. 1995]). In petitioner's order to show cause there is no mention of the date of the dismissal of the underlying criminal charges. The Court now has notice of the dismissal date, because after the motion was submitted for decision, a letter was sent to the Court annexing a copy of the criminal disposition, which occurred on August 31, 2007. Even if the Court were to consider the application with regard to the malicious prosecution claim, it is clear that the 90 days has expired under GML §50-e as to that claim, which should have been filed by November 28, 2007. Furthermore, the Notice of Claim sent to the City without leave of court on July 6th 2007 , was premature as to the malicious prosecution claim but that service does not cure the defect. ( Guzman v City of New York [2d Dept. 1997]). Therefore, the notice filed on July 6, 2007 is a nullity,because it was served without leave of court. ( Kokkinos v Dormitory Authority of the State of New York, 238 AD2d 550 [2d Dept.])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 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.

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(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 [*3]excuse for delay in filing a notice of claim. Here counsel was retained not 10 days after the expiration of date for the filing of the notice of claim for false arrest, false imprisonment, assault and battery, personal injuries, and negligence, but does not make the instant application to file the notice of claim until nine months after the ninety day period has expired. Additionally, there is no satisfactory reason why counsel was retained late. (Matter of Dube v City of New York, 158 AD2d 457 [2nd Dept., 1990], Winter v City of Geneva [4th Dept 1994].) Petitioner offers as an excuse that she did not have knowledge of legal matters. However, petitioners' ignorance of the law is not a reasonable excuse for delay in filing a late notice of claim. (Matter of Ealey v City of New York, 204 AD2nd 720, [2nd Dept 1994], Matter of D'Anjou v New York City Housing Authority, 196 AD2nd 818, [2nd Dept 1993], Matter of Gandia v New York City Housing Authority, 173 AD2nd 824 [2nd Dept 1982] Matter of Mallory v City of New York, 135 AD2nd 636 [2nd Dept 1987].)

The Court next considers whether the City received actual notice of the essential facts constituting the claims, within the ninety days or a reasonable time thereafter.

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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, personal injuries, and negligence, and malicious prosecution. 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 and the criminal trial record. 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 [*4]

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.

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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 attach or reference any documents which might demonstrate that the City had knowledge of the specific facts which give rise to the claims that could be analyzed by the Court in determining whether the City received knowledge.

The Court also finds that a delay of nine months to file a late Notice of Claim without the City having received the essential facts would be prejudicial to the City.

Accordingly, the application to serve a late notice of claim is denied in its entirety. The Court notes that this decision does not affect plaintiff's 1983 claim as the notice of claim requirements of General Municipal Law § 50-e do not apply to federal civil rights claims asserted pursuant to 42 USC § 1983 (see Felder v. Casey, 487 U.S. 131, 101 L.Ed.2d 123; Zwecker v. Clinch, 279 AD2d 572 [1988 ], Pendleton v. City of New York , 44 AD3d 733, [2 Dept.2007]).

The foregoing constitutes the decision and Order of the Court.

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J.S.C.

May 13, 2008.

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