Kenneth E. Pitcoff and Andrea M. Alonso, New York Law Journal
November 29, 2018
Under General Municipal Law §50-e, a party suing a municipality must serve a notice of claim within 90 days after the claim arises. The §50-e requirement applies where a plaintiff seeks to bring false arrest and false imprisonment claims against a municipality under state law. The 90-day period with in which the notice of claim must be served for false arrest and false imprisonment claims commences on the day plaintiff is released from custody. Gen. Mun. Law §50-e(1)(a). The notice of claim requirement does not apply to claims for false arrest and false imprisonment brought against a municipality under 42 U.S.C. §1983, and dismissal of state law claims on the grounds of late notice would not affect the validity of these federal civil rights claims. If plaintiff fails to timely serve a notice of claim, the court can exercise its discretionary powers and extend the time to serve a notice of claim. Gen. Mun. Law §50-e (5). In exercising its discretion, a court must consider certain statutory factors, including the following: (1) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter; (2) whether granting the petition to file a late notice of claim would substantially prejudice the municipal defendant; and (3) whether the plaintiff offered a reasonable excuse for the delay. See Gen. Mun. Law §50-e. The Second Department has repeatedly held that there was actual knowledge in false arrest and false imprisonment claims where plaintiff has been able to demonstrate through particularized evidence that the conduct of municipal employees, specifically members of the police department and district attorney's office, gave rise to the claims. Since the purpose of the notice of claim requirement is to allow municipalities the ability to timely and efficiently investigate the claim, once actual knowledge is established, plaintiffs initial burden of demonstrating lack of substantial prejudice is also met. If actual knowledge and a lack of prejudice is demonstrated, a lack of reasonable excuse does not bar the granting of leave to serve a late notice of claim.
Actual Knowledge
In order for a municipality to have actual knowledge of the essential facts constituting the claim it "must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim." Ruiz v. City of New York, 154 A.D.3d 945, 946 (2d Dep't 2017) (citing Felice v. Eastport/5. Manor Cent. Sch. Dist., 50 A.D.3d 138, 148 (2d Dep't 2008)). Actual knowledge of the facts underlying plaintiff s claim can be imputed to the municipality if its employees engaged in the conduct which gave rise to the claim. See Erichson v. City of Poughkeepsie Police Dep't, 66 A.D.3d 820 (2d Dep't 2009). The municipality has actual knowledge in false arrest and false imprisonment claims where the conduct of members of the police department and district attorney's office gave rise to the action. Id. at 888; see McKenna v. City of New York, 154 A.D.2d 655, 656 (2d Dep't 1989). However, as demonstrated by Ruiz v. City of New York, failure to submit record evidence to show that the municipality had actual knowledge is fatal. 154 A.D.3d at 949; see Destine v. City of New York, 111 A.D.3d 629, 630 (2d Dep't 2013).
Substantial Prejudice
Plaintiff’s initial burden of demonstrating lack of substantial prejudice is met automatically when it is established that the municipality had actual knowledge of the essential facts constituting the claim. See Erichson, 66 A.D.3d at 821. In Newcomb v. Middle County Central School District, the Court of Appeals has instructed that "a showing [of prejudice] need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice. Newcomb v. Middle Country Cent Sch. Dist., 28 N.Y.3d 455, 456 (2d Dep't 2016). Since plaintiff is seeking leave to file a late notice of claim, the court reasoned that the initial burden should belong to the plaintiff. Newcomb, 28 N.Y.3d at 456. However, once plaintiff meets this initial burden, the municipality is to rebut with a "particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed." Id (emphasis added). The municipality is in the best position to know and demonstrate whether it has been substantially prejudiced, and so their opposition cannot be based on speculation or inference. See id.
Reasonable Excuse
A court will also consider whether plaintiff has a reasonable excuse for the delay, but the "absence of an acceptable excuse is not necessarily fatal." Davis v. City. of Westchester, 78 A.D.3d 698 (2d Dep't 2010). In fact, where there is actual knowledge and an absence of prejudice, "the lack of reasonable excuse will not bar the granting of leave to serve a late notice of claim." Erichson, 66 A.D.3d at 821. Specifically, regarding false arrest and false imprisonment claims, the cause of actions may accrue prior to the termination of a criminal proceeding, making records unavailable due to the limited discovery permitted in criminal proceedings. Ruiz, 154 A.D.3d 949. This may be a viable reasonable excuse argument. See Newcomb, 28 N.Y.3d at 457 ("reasonable excuse for the ... delay in filing based upon ... the unavailability of crucial evidence because of a criminal investigation warrants the petition to be granted."). Furthermore, ignorance of the law does not constitute a reasonable excuse for failure to serve a timely notice of claim. Destine, 111 A.D.3d at 629.
'Ruiz v. City of New York' In Ruiz, plaintiff commenced a proceeding pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim upon the City of New York and the New York City Police Department for his false arrest and false imprisonment claims arising from his arrest on Sept. 10, 2014. Ruiz, 154 A.D.3d at 945. The Supreme Court denied the petition for leave to serve the late notice of claim, and the Second Department affirmed. Id. The court applied the Newcomb standard and found that "the petitioner [had] met his threshold burden of demonstrating the absence of substantial prejudice to the City by "making a plausible argument that the City will not be substantially prejudiced." Id. Plaintiff contended that the City's police officers participated in the acts giving rise to his arrest and imprisonment claims, the City's employees participated in the criminal investigation and prosecution, and that records relating to the arrest, detention and prosecution are in the City's files. Id. Under the shifted burden, "the City failed to make a particularized evidentiary showing that it will be substantially prejudiced.” Id. at 950. However, this was not enough to find that the trial court improvidently exercised its discretion. Id. at 9
The plaintiff failed to submit any record evidence establishing that the City had actual knowledge of the facts constituting the claims of false arrest and false imprisonment within 90 days after the claims arose or a reasonable time thereafter. Id. at 947. The court held that "unsubstantiated contentions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the content of reports and other documentations are insufficient. Id. at 946 (internal citations omitted). Additionally, in Ruiz, the court held that plaintiffs assertion that he knowingly delayed service of a timely notice of claim while the criminal charges were pending due to an "unsubstantiated fear of reprisal" by the District Attorney's office did not constitute a reasonable excuse. Id. at 947. Furthermore, as to the issue of reasonable excuse, plaintiff did not explain why after the charges were dismissed, he waited approximately two more months to commence this proceeding. Id.
Conclusion
The Second Department has repeatedly granted leave to file late notices of claims in false arrest and false imprisonment cause of actions where plaintiffs were able to demonstrate through particularized evidence that the municipality had actual knowledge of the facts essential to the claim. In such cases, actual knowledge is imputed to the municipality, which also allows plaintiff to meet his initial burden in demonstrating a lack of substantial prejudice. In Ruiz, the failure to provide evidence which were in the City's possession proved to be a fatal flaw. If plaintiff in Ruiz demonstrated actual knowledge through particularized evidence, it is likely that his petition to file a late notice of claim would have been granted even if he failed to show a reasonable excuse. It is imperative that petitioners obtain criminal arrest records prior to seeking leave to file a late notice of claim.
Kenneth E. Pitcoff and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley. Tasnova Amanullah, an associate, assisted in the preparation of the article.
Reprinted with permission from the November 29, 2018 edition of the New York Law Journal © 2018 ALM Media Properties, LLC. All rights reserved.
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