| Rowe v NYCPD |
| 2011 NY Slip Op 05477 [85 AD3d 1001] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Bishop W. Rowe, Appellant, v NYCPD et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for respondents.
In an action, inter alia, to recover damages for negligence and violation of civil andconstitutional rights pursuant to 42 USC § 1983, the plaintiff appeals from (1) an order ofthe Supreme Court, Kings County (Velasquez, J.), dated December 14, 2009, which granted thedefendants' motion to dismiss the complaint for failure to serve a timely notice of claim and astime-barred, and (2) an order of the same court dated August 30, 2010, which denied his motionfor leave to renew and reargue his opposition to the defendants' motion to dismiss the complaint.
Ordered that the order dated December 14, 2009, is modified, on the law, by deleting theprovision thereof granting that branch of the defendants' motion which was to dismiss the causeof action to recover damages for violation of civil and constitutional rights pursuant to 42 USC§ 1983 and substituting therefor a provision denying that branch of the motion; as somodified, the order dated December 14, 2009, is affirmed insofar as appealed from, without costsor disbursements; and it is further,
Ordered that the appeal from so much of the order dated August 30, 2010, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order dated August 30, 2010, is affirmed insofar as reviewed, without costsor disbursements.
General Municipal Law § 50-e requires that a notice of claim be served within 90 daysafter a tort claim arises against a municipality (see General Municipal Law § 50-e[1] [a]). "Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tortand commenced against a municipality" (Matter of National Grange Mut. Ins. Co. v Town of Eastchester, 48AD3d 467, 468 [2008]). However, a notice of claim is not a condition precedent to a causeof action, asserted pursuant to 42 USC § 1983, which seeks to recover damages premisedon violations of federal civil or constitutional rights under color of state law (see 42 USC§ 1983; Felder v Casey, 487 US 131 [1988]; Burton v Matteliano, 81 AD3d 1272 [2011]; Montano v City of Watervliet, 47AD3d 1106 [2008]; Pendleton vCity of New York, 44 AD3d 733 [2007]).[*2]
The Supreme Court properly determined that a timelynotice of claim was required to be served upon the defendants to the extent the plaintiff assertedclaims sounding in common-law tort (see Matter of Peterson v New York City Dept. of Envtl. Protection, 66AD3d 1027 [2009]; Matter of Leedsv Port Washington Union Free School Dist., 55 AD3d 734 [2008]; Matter of Brownstein v Incorporated Vil. ofHempstead, 52 AD3d 507 [2008]). The Supreme Court also properly determined thatthe first notice of claim which was "actually received" by the defendants relating to the claimsthat purportedly arose on May 31, 2007, was stamped received on July 18, 2008, which was wellbeyond the statutory time period (see General Municipal Law § 50-e [1] [a]).Furthermore, the Supreme Court properly rejected the plaintiff's contention that his claims wereequitable in nature, as the plaintiff's principal objective was to recover money damages. TheSupreme Court also properly rejected the plaintiff's contention that his claims arose from a"continuous wrong," as the plaintiff did not predicate his claims on continuing unlawful acts but,rather, on the continuing effects of "earlier unlawful conduct" (Selkirk v State of NewYork, 249 AD2d 818, 819 [1998]; see also Chardon v Fernandez, 454 US 6, 8[1981]; Prisco v State of New York,62 AD3d 978 [2009]; Matter ofCivil Serv. Empls. Assn. Inc. v Diana, 48 AD3d 803 [2008]; Kaufman v State of New York, 18AD3d 503 [2005]).
However, after affording the plaintiff's allegations every possible favorable inference, we areunwilling to determine at this pre-answer stage of the litigation that the plaintiff has failed toassert claims alleging violations of federal civil and constitutional rights under color of state law,especially where, as here, the pleading is not being challenged for its sufficiency pursuant toCPLR 3211 (see 42 USC § 1983; see generally Matter of Upstate Land & Props., LLC v Town of Bethel,74 AD3d 1450 [2010]; Sonne vBoard of Trustees of Vil. of Suffern, 67 AD3d 192 [2009]).
Accordingly, the Supreme Court's dismissal of the complaint based on the plaintiff's failureto timely serve a notice of claim was proper except to the extent it dismissed the plaintiff's causeof action to recover damages for violation of his federal civil and constitutional rights under colorof state law (see Dorce v United RentalsN. Am., Inc., 78 AD3d 1110 [2010]; Pendleton v City of New York, 44 AD3d 733 [2007]).
The Supreme Court also properly denied that branch of the plaintiff's motion which was forleave to renew his opposition to the defendants' motion to dismiss the complaint. "A motion forleave to renew is not a second chance freely given to parties who have not exercised duediligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055 [2005]; Matter of Allstate Ins. Co. v Liberty Mut.Ins., 58 AD3d 727 [2009]). A motion for leave to renew must be based upon new facts,not offered on the original application, "that would change the prior determination" (CPLR 2221[e] [2]; see Matter of Korman vBellmore Pub. Schools, 62 AD3d 882, 884 [2009]). The new or additional facts musthave either not been known to the party seeking renewal (see Matter of Shapiro v State ofNew York, 259 AD2d 753 [1999]) or may, in the Supreme Court's discretion, be based onfacts known to the party seeking renewal at the time of the original motion (seeCole-Hatchard v Grand Union, 270 AD2d 447 [2000]). However, in either instance, a"reasonable justification" for the failure to present such facts on the original motion must bepresented (CPLR 2221 [e] [3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3dat 884). What constitutes a "reasonable justification" is within the Supreme Court's discretion (Heaven v McGowan, 40 AD3d583 [2007]). Here, the Supreme Court did not improvidently exercise its discretion indenying leave to renew. Where, as here, the "new evidence" consists of documents which theplaintiff knew existed, and were in fact in his own possession at the time the initial motion wasmade, no reasonable justification exists for the plaintiff's failure to exercise due diligence bysubmitting the documents in the first instance (see generally May v May, 78 AD3d 667 [2010]; Huma v Patel, 68 AD3d 821, 822[2009]).
The plaintiff's remaining contentions are without merit and, in light of our determination, weneed not address the defendants' remaining contention. Rivera, J.P., Dickerson, Lott and Cohen,JJ., concur.