[*1]

Petitioner Jimmie Bush (Bush) filed a notice of petition dated September 5, 2008, pursuant to General Municipal Law §50-e, for an order granting him leave to file a late Notice of Claim against the City of New York (City), for claims of false arrest, false imprisonment, negligent hiring and retention of City employees, negligent and intentional infliction of emotional distress and violation of the petitioner's civil rights. Petitioner was arrested on August 26, 2007 and released from detention four (4) days later on August 30, 2007.

On February 29, 2008, all criminal charges against the petitioner were dismissed.

On April 14, 2008, within ninety (90) days of the dismissal of the criminal charges, petitioner pursuant to GML §50-e, properly filed a timely Notice of Claim against the City for the claim of malicious prosecution. However, the Notice of Claim was untimely as to the claims of false arrest, false imprisonment, negligent hiring and retention and infliction of emotional distress, as the last date for the filing of a timely Notice of Claim was November 27, 2008 for the claims related to the false arrest and November 30, 2008 for the claims related to the false imprisonment. Therefore, the failure to serve the notice for those claims within ninety (90) days makes the April 14, 2008 filing a nullity. (Laroc v City of New York , 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007] , Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ]).

The instant petition requesting judicial intervention for the late filing was made on

September 5, 2008, over (1) one year after the date of arrest and over nine (9) months after the time to file a Notice of Claim had passed.

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 [*2]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]).

Bush argues that he failed to file a Notice of Claim because of excusable circumstances. First, because he was unaware of the 90-day time to file. Second, because "...all he could think about was proving (his) innocence and staying out of jail". Lastly, that his criminal charges were dismissed in February of 2008 and it was not until March 2008 that friends suggested he consult an attorney, which he did in April 2008. Shortly thereafter, his attorney filed the Notice of Claim that was timely only as to the malicious prosecution claim.

The Courts have recognized limited excuses for failure to file a timely Notice of Claim. In addressing the assertion that the petitioner was unaware of the requirement to file a Notice of Claim, ignorance of the law does not serve as a valid excuse for failure to file a Notice of Claim. (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]). The petitioner's second excuse, that he was preoccupied by his criminal case is also not an accepted excuse, as courts have recognized that even imprisonment does not excuse the delay. (Pascucci v Nassau County, 8 Misc 2d 229 [ Sup Ct Nassau County1957]; Application of Russell v City of New York, 2003 WL 21146884 [2003].) In addition, there is no toll of the time to file the Notice of Claim while imprisoned. (Lavalliere v Department of Corrections of City of New York 304 AD2d 370 [1st Dept 2003]). The petitioner's last assertion that he was only advised in March 2008 to consult an attorney is likewise not a valid excuse. (Astree v New York City Transit Authority, 31 AD3d 589 [2d Dept 2006]) .

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].) Consequently, the Court can consider whether the City received actual notice of the facts constituting the claims.

Actual knowledge of the essential facts of the claim must have been acquired by the City within the 90 days or a reasonable time thereafter, not just knowledge of the occurrence. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008].)[*3]

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 arrest. The Order to Show Cause was adjourned by the Court from November 21, 2008 to February 6, 2009 and again adjourned until February 27, 2009 to provide time for the City to turn over arrest records to petitioner and time for the petitioner to obtain any records that would support his position that the City had knowledge of the essential facts of the claim. Petitioner now argues that the City failed to provide "the entire contents of the police records concerning petitioner's arrest" and that this is nothing but an "attempt to hide from the court the knowledge that the City in fact possessed about the facts and circumstances" of the arrest. The City did provide the petitioner with a computer generated arrest record of the petitioner. The Court has not been provided with any other records, despite the delay in hearing the petition in order to assist in determining whether the City possessed the essential facts of the claims. The Court notes that the computer generated arrest record of the petitioner states that "this is a sealed record", making it clear that without a release from the petitioner, the City itself cannot review or obtain the arrest record. The Court also notes that the petitioner has access to the public portion of the arrest file, if it exists, through the Freedom of Information Law and petitioner has not asserted that he has been prevented from receiving access to his own sealed criminal file.

The petitioner further asserts that the City had the essential facts of the claims because the records that are regularly generated in a routine arrest contain facts concerning whether or not the City had probable cause at the time of petitioner's arrest. Therefore, petitioner argues that because probable cause is an essential part of the theory of the claims of false arrest and false imprisonment, that the City had notice within the ninety (90) day period. In support of this assertion, the petitioner attaches an affidavit of retired Police Officer Barry Hamber to attempt to demonstrate to the Court how many different procedures the arresting officer has to follow in order to process an arrest and the numerous documents that are routinely generated in an arrest.Apparently, petitioner wants to substitute an expert's speculation for what should or may be in the petitioner's arrest records for proof that the City had actual notice within the (90) ninety day period. There is no case law support for this argument and petitioner cites none.

Moreover, 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. 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).

The court in Caselli also found that where actual knowledge is imputed to a police department, because of the existence of police reports or the involvement of an officer, that other factors need to be present for the court to consider whether the City had actual knowledge of the essential facts of the claim within the ninety (90) day period or a reasonable time thereafter through its police officers. Here, the Court does not find that there were any other factors present. The unsupported assertion that the City was attempting to hide records from the Court is not a valid factor to be considered. It is mere speculation to assume that the arrest records contain facts which show that there was no probable cause for the petitioner's arrest.

Petitioner additionally asserts that the City received the essential facts of the claim because the police officers who participated in Bush's arrest are imparted with the knowledge of the arrest, citing the Appellate Division, Second Department case of Ragland v New York City Housing Authority, 201 AD2d 7 [2d Dept 1994]. However, this Court does not accept the premise of petitioner's argument that in every case where a police officer is the subject of a civil complaint arising out of an alleged assault or false arrest that it was the intention of the Appellate Division to impute the City with actual knowledge of the essential facts through the arresting police officer without some other factor which would lead the City to have had the knowledge of the essential facts and theory within the ninety (90) day period. (See, Matter of Black v City of New York, 21 Misc 3d 1121 (A) [Sup. Ct. Kings County 2008]).

Using the guidance of the recent Appellate Division, Second Department case of Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], the Court finds that there has been no showing that the City had any knowledge of the facts of the claims within the ninety days (90) from arrest or a reasonable time thereafter. [*5]

Speculation as to what or may not be in arrest records is not sufficient to establish knowledge of the facts or theories underlying petitioners's claims of false arrest and imprisonment. Moreover, petitioner does not even argue that these speculative records would recite any facts or theories of the claims of negligent hiring and retention of City employees and infliction of emotional distress.

The Court also considered whether the City would be prejudiced by such a delay in service of the Notice of Claim. The Court in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008] when analyzing whether the municipality has been prejudiced by the delay in filing the Notice of Claim noted that:

"Of course, when the public corporation has

actual knowledge of the facts constituting the

claim, it may be easier for a claimant to meet

this burden (see Gibbs v City of New York, 22

AD3d 717, 719 [2005]). Indeed, the Court of

Appeals has recently observed that "proof that

the defendant had actual knowledge is an important

factor in determining whether the defendant is

substantially prejudiced by such a delay" (Williams

v Nassau County Med. Ctr., 6 NY3d at 539; see

Jordan v City of New York, 41 AD3d 658 [2007];

Matter of Vasquez v City of Newburgh, 35 AD3d

621, 623 [2006]; Rechenberger v Nassau County Med.

Ctr., 112 AD2d150, 153 [1985])." (Emphasis added)

Further the court in Ragland stated;

" It is clear that as long as the files of the Criminal Court,

the District Attorney, and the Authority's Police Department

in the case of People v Karl Ragland (docket number 91 Q025937)

remain sealed, the Authority is substantially prejudiced, and the

granting of leave to serve a late notice of claim must be considered animprovident exercise of discretion." [*6]

Petitioner has failed to demonstrate that the City acquired the actual knowledge of the essential facts and the theory of the claims for false arrest, false imprisonment, assault and battery, negligent and intentional infliction of emotional distress, negligent supervision, hiring and training of the police officers, and has failed to demonstrate lack of prejudice to the City.

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

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

May 12, 2009