| Meyer v County of Suffolk |
| 2011 NY Slip Op 09100 [90 AD3d 720] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Dennis Meyer, Appellant, v County of Suffolk,Respondent. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel),for respondent.
In an action, inter alia, to recover damages for false imprisonment and violation of civil andconstitutional rights pursuant to 42 USC § 1983, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Gazzillo, J.), dated June 19, 2009, which denied his motion todeem the notice of claim timely served, and granted the defendant's cross motion to dismiss theaction for failure to timely serve a notice of claim.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's cross motion which was to dismiss the cause of action alleging aviolation of civil and constitutional rights pursuant to 42 USC § 1983, and substitutingtherefor a provision denying that branch of the cross motion; as so modified, the order isaffirmed, without costs or disbursements.
" 'In exercising its discretion in determining whether or not to [deem a notice of claim timelyserved], the court must consider various factors, including whether (1) the claimant is an infant,(2) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice ofclaim, (3) the public corporation acquired actual knowledge of the facts constituting the claimwithin 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantiallyprejudice the public corporation in defending on the merits (see General Municipal Law§ 50-e [5])' " (Wade v New YorkCity Health & Hosps. Corp., 85 AD3d 1016, 1017 [2011], quoting Matter of Kaur v New York City Health &Hosps. Corp., 82 AD3d 891, 891-892 [2011]; see Matter of Davis v County of Westchester, 78 AD3d 698[2010]). "[T]he presence or absence of any one factor is not determinative" (Matter of Kaur vNew York City Health & Hosps. Corp., 82 AD3d at 892).
Here, the plaintiff failed to set forth a reasonable excuse for his delay in serving his notice ofclaim, and the record does not reveal the existence of a reasonable excuse. Lack of awareness ofthe possibility of a lawsuit is not a reasonable excuse for delay in filing a notice of claim (see Bucknor v New York City Health &Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811, 813 [2007]; Matter of Flores v County of Nassau, 8AD3d 377, 378 [2004]; Matter of Cotten v County of Nassau, 307 AD2d 965, 966[2003]). Additionally, ignorance of the requirement to serve the notice of claim within [*2]90 days does not constitute a reasonable excuse (see Williams v Nassau County Med.Ctr., 13 AD3d 363, 364 [2004], affd 6 NY3d 531 [2006]; Matter of Pico v City of New York, 8AD3d 287, 288 [2004]).
The record also does not reflect that the defendant had "actual knowledge of the essentialfacts constituting the claim" (General Municipal Law § 50-e [5]; see Matter of Estate of Curreri v New YorkCity Hous. Auth., 87 AD3d 1064 [2011]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 147-148 [2008]). Furthermore, the plaintiff failed to establish that the delay in servingthe late notice of claim would not substantially prejudice the defendant (see Williams vNassau County Med. Ctr., 6 NY3d at 539; Wade v New York City Health & Hosps. Corp., 85 AD3d 1016[2011]; see Matter of Lewis v City ofNew York, 82 AD3d 981 [2011]). Accordingly, the Supreme Court providentlyexercised its discretion in denying the plaintiff's motion to deem his notice of claim timely servedand granting that branch of the defendant's cross motion which was to dismiss the statecommon-law causes of action to recover damages for false imprisonment, negligence, and grossnegligence for failure to timely serve a notice of claim.
However, the Supreme Court erred in granting that branch of the defendant's cross motionwhich was to dismiss the cause of action to recover damages for a violation of the plaintiff's civiland constitutional rights pursuant to 42 USC § 1983. The defendant cross-moved todismiss the action solely on the ground that the plaintiff failed to comply with the notice of claimrequirement of the General Municipal Law (see CPLR 3211 [a] [7]; [e]). A cause ofaction pursuant to 42 USC § 1983 is not subject to a state statutory notice of claimrequirement (see Felder v Casey, 487 US 131, 153 [1988]; Rowe v NYCPD, 85 AD3d 1001,1002 [2011]). Skelos, J.P., Balkin, Eng and Sgroi, JJ., concur.