Judge Anthony Cannataro

Sheppard sued New York City (NYC) for false arrest and malicious prosecution stemming from his arrest after an altercation with his now-ex-girlfriend. Eight months after the arrest, he served NYC with a notice of claim, and a trial was held. He testified his girlfriend “clobbered” him while they were alone in their bedroom and he grabbed her, pinning her to the bed, then called the police. Sheppard was arrested and charged with strangulation, and released on his own recognizance after being in custody for two days, but the complaint was dismissed six months later and the order of protection vacated. Neither the arresting officer, nor the ex-girlfriend testified at trial, but NYC moved for dismissal of the false arrest claim arguing the notice of claim was untimely. The court found the notice of claim was untimely, thus a nullity, but Sheppard argued NYC could only raise the defense of untimely notice of claim “prior to trial,” relying on appellate cases. Yet, the court stated such interpretation would “run afoul of well-settled precedent” finding a timely service of a notice of claim on a municipal corporation—NYC—was a non-waivable condition precedent to suit. As such, the court granted NYC dismissal of the false arrest claim.