New York Criminal Lawyer Blog
The petitioner man was arrested by a member of the Housing Authority Police Department in Queens. He was arrested for criminal contempt in the second degree (violation of an order of protection) and sexual harassment. The officer acted on the basis of information supplied to him by the person who was to be protected by the order of protection.
The petitioner was arraigned in the Criminal Court of the City of New York and remanded, apparently in default of bail. The charges were dismissed and all records sealed. While the certificate of disposition does not set forth the reason for the dismissal, the petitioner indicates that it was because he had never been served with the order of protection. The petitioner, acting pro se, served a notice of claim upon the City of New York in January 1992. Subsequently, according to the petitioner, the Comptroller’s Office advised him that the City was not the proper party to be given notice. The petitioner consulted with his attorney and promptly moved for permission to serve a late notice of claim against the Housing Authority, alleging false arrest, false imprisonment, and malicious prosecution resulting in mental anguish or suffering, shame and humiliation, ridicule and scorn, moral and mental degradation, loss of earnings, property loss and physical injury. Public Housing Law provides that all notices of claim relating to personal injuries must be presented to the Authority within 90 days and that all of the provisions of General Municipal Law shall apply to such notices.
The Supreme Court granted the application, and deemed the notice of claim to be timely served. This decision was predicated upon the finding that the Authority had actual knowledge of the facts constituting the petitioner’s cause of action. The court did not address the question of any possible prejudice to the Authority.
General Municipal Law required the petitioner to serve a notice of claim with the Housing Authority within 90 days after the cause of action arose. The petitioner’s claim sounding in false arrest accrued on the date on which he was released from custody. This was also the accrual date of the petitioner’s cause of action sounding in false imprisonment. However, the cause of action sounding in malicious prosecution did not accrue when the charges were dismissed by the Criminal Court. Using these accrual dates, the petitioner had to serve a notice of claim as to the false arrest and false imprisonment causes of action and to serve a notice of claim as to the malicious prosecution cause of action. Hence, the petitioner sought leave to serve the notice of claim approximately five months and two months late, respectively.
The petitioner’s application for leave to serve a late notice of claim is governed by General Municipal Law, which sets forth a series of factors to be considered by the court in deciding the application.
The petitioner contends that the Housing Authority had actual knowledge of the facts constituting the causes of action, since they are predicated on the conduct and actions of the arresting officer, who is an employee of the Housing Authority. As a police officer, he prepared and filed reports concerning all the events involved in the arrest and prosecution of the petitioner. The Housing Authority, on the other hand, contends that knowledge obtained by a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim.
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.
Since the reason for the early filing of a notice of claim is to permit the public corporation to conduct a prompt investigation into the facts and circumstances giving rise to the claim, the existence of reports in its own files concerning those facts and circumstances is the functional equivalent of an investigation. In the normal course, it would follow that the public corporation, in this case the Housing Authority, would suffer no prejudice. However, under the facts of this case, the Supreme Court should have considered whether or not the Housing Authority has been substantially prejudiced.
If you want to counter sue a person who falsely charged you, you can hire the Nassau County Criminal Attorney together with the Nassau County Rape Lawyer from Stephen Bilkis and Associates.