| Matter of Bush v City of New York |
| 2010 NY Slip Op 06417 [76 AD3d 628] |
| August 17, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jimmie Bush, Appellant, v City of NewYork, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andVictoria Scalzo of counsel), for respondent.
In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law§ 50-e (5), the petitioner appeals from a judgment of the Supreme Court, Kings County(Miller, J.), dated May 12, 2009, which denied the petition and, in effect, dismissed theproceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner was arrested on August 26, 2007, and charged with reckless endangerment inthe first degree, assault in the second degree, and menacing in the second degree with respect toan incident in which a complainant sustained two gunshot wounds. The petitioner was releasedfrom custody after posting bail three or four days after his arrest, and on February 29, 2008, thecharges against him were dismissed. On April 14, 2008, the petitioner served a notice of claimupon the City of New York, alleging, inter alia, false arrest and malicious prosecution. Thisnotice of claim was timely with respect to the petitioner's malicious prosecution claim, butuntimely with respect to his false arrest claim (see Roche v Village of Tarrytown, 309AD2d 842, 843 [2003]). The petitioner subsequently commenced this proceeding pursuant toGeneral Municipal Law § 50-e (5) for leave to serve a late notice of claim with respect tohis claim alleging false arrest.
The Supreme Court did not improvidently exercise its discretion in denying the petition forleave to serve a late notice of claim. The petitioner's explanation that he was unaware of thenotice of claim requirement does not constitute a reasonable excuse for his failure to serve atimely notice with respect to the false arrest claim (see Matter of Catuosco v City of New York, 62 AD3d 995, 997[2009]; Astree v New York City Tr.Auth., 31 AD3d 589, 590 [2006]). Moreover, the evidence submitted by the petitioneralong with his petition failed to establish that the City had actual knowledge of the essential factsconstituting the false arrest claim within 90 days following its accrual or a reasonable timethereafter (see Williams v NassauCounty Med. Ctr., 6 NY3d 531, 536 [2006]; Matter of Griffin v City of New York, 69 AD3d 938, 939 [2010];Matter of Charles v City of NewYork, 67 AD3d 793 [2009]). Finally, the petitioner failed to establish that the delay inserving a notice of claim would not substantially prejudice the City (see Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 152-153 [2008]). Dillon, J.P., Balkin, Belenand Lott, JJ., concur. [Prior Case History: 23 Misc 3d 1124(A), 2009 NY Slip Op50927(U).]