| Matter of Rivera v City of New York |
| 2011 NY Slip Op 07643 [88 AD3d 1004] |
| October 25, 2011 |
| Appellate Division, Second Department |
| In the Matter of Rosa Rivera et al., Appellants, v City ofNew York et al., Respondents. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and JanetL. Zaleon of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve latenotices of claim, the petitioners appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Sherman, J.), dated February 24, 2011, as denied those branchesof their petition which were for leave to serve a late notice of claim on behalf of the petitionerRosa Rivera with respect to that petitioner's claims of false arrest, false imprisonment, andmalicious prosecution, and for leave to serve a late notice of claim on behalf of the petitionerRosangela Rivera with respect to that petitioner's claims of false arrest and false imprisonment.
Ordered that the order is affirmed insofar as appealed from, with costs.
The petitioners were arrested on December 27, 2009. Subsequently, the petitioner RosaRivera (hereinafter Rosa) was charged with refusing to aid a police officer, and the petitionerRosangela Rivera (hereinafter Rosangela) was charged with obstructing governmentaladministration in the second degree and tampering with physical evidence. Several days afterthey were arrested, the petitioners were released from custody on their own recognizance. OnJanuary 5, 2010, the charges against Rosa were dismissed, and on August 27, 2010, the chargesagainst Rosangela were dismissed. On August 30, 2010, the petitioners filed separate notices ofclaim upon the respondents alleging, inter alia, claims of false arrest, false imprisonment, andmalicious prosecution. Rosangela's notice of claim was timely with respect to her maliciousprosecution claim (see Matter of Ragland v New York City Hous. Auth., 201 AD2d 7, 9[1994]). The petitioners subsequently commenced this proceeding pursuant to General MunicipalLaw § 50-e (5) for leave to serve late notices of claim with respect to, among other things,their respective claims of false arrest and false imprisonment and Rosa's claim of maliciousprosecution.
The Supreme Court did not improvidently exercise its discretion in denying those branchesof the petition which were for leave to serve a late notice of claim on behalf of Rosa with respectto that petitioner's claims of false arrest, false imprisonment, and malicious prosecution, and forleave to serve a late notice of claim on behalf of Rosangela with respect to that petitioner's claimsof false arrest and false imprisonment. The petitioners failed to provide a reasonable excuse fortheir failure to serve timely notices of claim with respect to those claims (see Matter of Cali v [*2]City of Poughkeepsie, 84 AD3d 1229 [2011]; Matter of Werner v Nyack Union FreeSchool Dist., 76 AD3d 1026 [2010]; Matter of Bush v City of New York, 76 AD3d 628, 629 [2010]).Moreover, the evidence submitted by the petitioners failed to establish that the respondents hadactual knowledge of the essential facts constituting the aforementioned late claims within 90 daysfollowing their accrual or a reasonable time thereafter (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006];Matter of Blanco v City of NewYork, 78 AD3d 1048 [2010]; Matter of Bush v City of New York, 76 AD3d at629; Matter of Griffin v City of NewYork, 69 AD3d 938 [2010]; Matter of Charles v City of New York, 67 AD3d 793 [2009]).Finally, the petitioners failed to establish that the delays in serving their notices of claim wouldnot substantially prejudice the respondents in maintaining their defense on the merits with respectto the aforementioned late claims (see Williams v Nassau County Med. Ctr., 6 NY3d at539; Matter of Bush v City of New York, 76 AD3d at 629; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 152-153 [2008]). Skelos, J.P., Angiolillo, Lott andRoman, JJ., concur.