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False arrest is the issue here

On 7 July 2010, when the petitioner’s father had his mother pinned against the kitchen wall, the petitioner was allegedly assaulted by his father after he attempted to separate his father from his mother. According to the petitioner, he was stabbed with a knife by his father and was hospitalized thereafter. At approximately 3:00 a.m. on that day, while the petitioner was in the hospital for the stab wound to his chest, he was arrested by law enforcement from the County of Nassau (herein “County”) and the Village of Malverine (herein “the Village”) on charges of Second Degree Assault. At the Hospital, the petitioner provided statements to law enforcement regarding the incident that occurred earlier that night. Later the same day, the petitioner was arraigned on the Second Degree Assault charge and released on his own recognizance. On 6 December 2010, after appearing at four criminal court appearances, the criminal action was terminated in favor of the petitioner.

On 22 February 2011, the petitioner timely served a Notice of Claim for malicious prosecution upon the respondents, the County and the Village. Pursuant to the rules, the ninety day time period in which to file a Notice of Claim for malicious prosecution began to run on the date the criminal charges were dismissed in the petitioner’s favor. However, the petitioner’s time to file a Notice of Claim for false arrest and false imprisonment expired on 5 October 2010, as the applicable time period for said claims began to run on the date the petitioner was released from custody. Thereafter, the petitioner made an application to file a late Notice of Claim on 24 February 2011, approximately four months after the ninety day time period expired for false arrest and false imprisonment. The petitioner, in an Order to Show Cause, sought for an order pursuant to General Municipal Law granting him leave to serve a late Notice of Claim, nunc pro tunc, against the respondents, the County and the Village.

Under the General Municipal Law, in order to commence a tort action against a municipality, it is required that a claimant serve a notice of claim within ninety (90) days of the alleged injury. The time to serve a notice of claim may, in its discretion, be extended by the court. The key factors in determining whether to allow service of a late notice of claim are whether: the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim; the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter; and the delay would substantially prejudice the municipality in its defense. The presence or absence of any one of the factors is not necessarily determinative, and the absence of a reasonable excuse is not necessarily fatal.

Whether a public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight.
According to the petitioner, his application to file a late Notice of Claim is timely as it is being made within one year and ninety days of its accrual; the respondents received actual notice of the essential facts that constitute the claims of false arrest and false imprisonment as law enforcement from the County and the Village conducted an investigation and effectuated the petitioner’s arrest; the respondent County, obtained and prepared a Statement of Admission and Supporting Deposition; and, due to the respondents direct involvement in the investigation and subsequent arrest, actual knowledge is imputed to the municipalities. With respect to the reasonable excuse factor, the petitioner submitted an Affidavit wherein he stated that he was misinformed by his criminal attorney regarding the time in which to file a Notice of Claim for false arrest and false imprisonment. Specifically, as adduced from the petitioner’s Affidavit of Merit, his criminal attorney advised him that the ninety day time period in which to file a Notice of Claim for malicious prosecution, false arrest and false imprisonment runs from the date the criminal charges were dismissed in his favor; that only after his retention of a civil attorney was he made aware that the time period in which to file a Notice of Claim against a municipality for false arrest and false imprisonment runs from the date of his release from custody, and, therefore, the time period expired on 5 October 2010; that even if the Court were to find the petitioner’s excuse unreasonable, the absence of an acceptable excuse is not necessarily fatal to the application; and that the respondents will not be substantially prejudiced given the respondents actual knowledge of the circumstances giving rise to the claim and the brief four month delay. Domestic Violence was not apparent.

According to the respondent Village, in opposition to the petitioner’s application, the Malverne Police Department did not in any way participate in the investigation prior to the arrest of the petitioner; based upon its limited involvement in the incident, actual knowledge cannot be imputed to the municipality. In support of its position, the Village submitted the Affidavit of the Chief of the Malverne Police Department; and it would be substantially prejudiced if the Court were to permit the claim as none of the relevant materials exist within the Village’s control and witnesses’ memories of the events may have faded.

According to the Chief of the Malverne Police Department, in his Affidavit, on the date of the incident, a Malverne police officer was dispatched to the hospital where the petitioner was treated for his stab wound, and at the same time, a desk officer contacted the 5th Squad Detectives at the Nassau County Police Department because the 5th Squad investigates most of the felonies that occur in Malverne; the criminal charge for which the petitioner was initially a suspect and subsequently arrested on was Second Degree Assault, a felony; an officer from the Malverne Police Department merely stood guard in front of the petitioner’s hospital room until the petitioner was arrested by the 5th Squad Detectives; and the Malverne Police Department did not interrogate the petitioner, take any statements from him, investigate the facts, or subsequently arrest him.

According to the respondent County, in opposition to the petitioner’s application, ignorance of the law and law office failure are not reasonable excuses; the mere involvement of the Nassau County Police Department in the investigation and subsequent arrest of the petitioner is insufficient to impute actual knowledge upon the County; and it will be substantially prejudiced if the petitioner’s application is granted. The crux of the County’s opposition is that the method by which the petitioner seeks to impute actual knowledge upon the County is similar to the line of cases that address issues of actual knowledge arising from the completion of accident reports.

The petitioner, in reply to the respondents’ opposition, relied primarily on the case of Ragland v. New York City Housing Authority, decided by the Second Department in 1994, which stands for the proposition that where members of the municipality’s police department participate in the acts giving rise to the claim, and reports and complaints have been filed by the police, the municipality will be held to have actual notice of the essential facts of the claim; and that several of the cases relied upon by the County involve circumstances where actual knowledge was not imputed to the municipality based merely upon a police officer’s completion of an accident report.

Here, it is evident that the respondent County did acquire actual knowledge of the facts underlying the petitioner’s claims for false arrest and false imprisonment within ninety days of the incident. A member of the Nassau County Police Department, an employee of an agency of the municipality, was directly involved in the facts giving rise to the petitioner’s claims. To that end, it was alleged in the petitioner’s Affidavit of Merit, and supported by the Chief of the Malverne Police Department, that an officer and/or detective of the Nassau County Police Department questioned the petitioner and obtained a Supporting Deposition and a Statement of Admission from him. Moreover, the Nassau County Police Department subsequently arrested the petitioner, charged him with Second Degree Assault based on those documents, and prosecuted the case against him until the charges were ultimately dismissed. While counsel for the County was correct in the assertion that completion of a police aided accident report, in and of itself, is insufficient to impute actual knowledge to the municipality, actual knowledge has been found to exist when there are other factors present under the circumstances.

In the case of Ragland, a case most analogous to the matter sub judice, the petitioner filed an application to serve a late Notice of Claim for the claims of false arrest, false imprisonment and malicious prosecution. In that case, the police officer that effectuated the petitioner’s arrest prepared and filed reports concerning all of the events involved in the arrest and prosecution of the petitioner. The Court found that it is a factor of considerable significance when it is the acts of the police which give rise to the very claim set forth in the proposed notice. Similarly, in the case of Erichson v. City of Poughkeepsie Police Department, decided by the Second Department in 2009, the Court determined that the municipality had actual knowledge of the facts underlying the plaintiff’s claim, as its own employees engaged in the conduct which gave rise to the claim.

Notably, the purpose of the statutory Notice of Claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. In view of this standard, the respondent County, had the opportunity to investigate, and did in fact investigate, the circumstances underlying the petitioner’s claims within the statutory time period. Since the County acquired actual knowledge of the essential facts of the petitioner’s claims, the petitioner has obviously met his initial burden of showing a lack of substantial prejudice to the municipality’s ability to maintain a defense on the claims. In this matter, however, the records from the underlying criminal matter were sealed pursuant to Criminal Procedure Law. Surprisingly, the respondent County did not raise the argument that it will be substantially prejudiced due to its inability to access those records. Thus, the Court conditioned the granting of the petitioner’s motion to file a late Notice of Claim on the respondent County, nunc pro tunc, on the petitioner providing the County with the appropriate releases to enable it to unseal and obtain the records from the criminal file.

With regard to the reasonable excuse factor, the petitioner’s excuse that he was ill advised by his criminal attorney regarding the accrual of the claims is not reasonable. Courts have consistently held that not even ignorance of the law or imprisonment, in limited circumstances, can excuse the delay. However, where there is actual notice and an absence of substantial prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late Notice of Claim.

In view of the above, the petitioner’s Order to Show Cause to file a late Notice of Claim, nunc pro tunc, against the respondent County was granted. However, contrary to the County, the respondent Village did not acquire actual knowledge of the essential facts giving rise to the petitioner’s claims for false arrest and false imprisonment. The Village was not directly involved in the investigation preceding or subsequent to the arrest and prosecution of the petitioner. The Supporting Deposition and Statement of Admission submitted in support of the Order to Show Cause were documents created by the County of Nassau. Actual knowledge cannot be imputed to a municipality where the only involvement of a law enforcement official was to stand guard in front of the hospital room where the petitioner was being treated. The conduct of the Malverne Police Department cannot be found to give rise to the petitioner’s claims. Thus, since the respondent Village did not obtain actual knowledge of the essential facts giving rise to the petitioner’s claims, the petitioner’s application to file a late Notice of Claim upon the Village, nunc pro tunc, was denied.

In sum, that branch of the petitioner’s Order to Show Cause seeking to file a late Notice of Claim, nunc pro tunc, upon the respondent County was granted, conditioned upon the petitioner providing the respondent county with the appropriate releases to enable the County to unseal and obtain the records from the criminal file; and that branch of the petitioner’s Order to Show Cause seeking to file a late Notice of Claim, nunc pro tunc, upon the respondent Village was denied.

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