In a recent unanimous decision, the Appellate Division, Second Department, overturned the dismissal of a lawsuit against three police officers who were not named in the Notices of Claim. The decision in Blake v. City of New York, 148 A.D.3d 1101 (2d Dept. 2017), overruled prior cases in the Second Department and came just 15 months after the First Department reached the opposite conclusion in Alvarez v. City of New York, 134 A.D.3d 599 (1st Dept. 2015). With this department split, it will only be a matter of time before the Court of Appeals is asked whether claimants are required to name individual municipal employees in their Notices of Claim.

Background

Blake stems from the arrest and indictment of the plaintiffs for their alleged involvement in an October 2008 shooting in Queens. After approximately 16 months in jail awaiting trial, a police informant who had positively identified the plaintiffs in two photo arrays recanted his identification and the charges were dismissed. The plaintiffs then filed lawsuits against, inter alia, the City of New York and five individual police officers for false arrest, malicious prosecution, and civil rights violations. Three of the named police officers, who were not identified in the Notices of Claim, moved for dismissal since they were not named in the Notices of Claim. Supreme Court granted dismissal on this basis and the plaintiffs appealed.

Decision

The Second Department held that the three police officers were not entitled to dismissal of the false arrest and malicious prosecution claims. The court began its analysis by acknowledging a split in the decisional law, noting that the First Department requires a municipal employee to be named in the Notice of Claim, see Alvarez, 134 A.D.3d 599; Tannenbaum v. City of New York, 30 A.D.3d 357 (1st Dept. 2006), whereas the Third and Fourth Departments do not. See Pierce v. Hickey, 129 A.D.3d 1287 (3d Dept. 2015); Goodwin v. Pretorius, 105 A.D.3d 207 (4th Dept. 2013).

Adopting the rationale of the Third and Fourth Departments, the Blake court adhered to a narrow interpretation of the statutory language of General Municipal Law §50-e(2), requiring the Notice of Claim to (1) be in a sworn writing; (2) provide the address of the claimant and his attorney; (3) set forth the nature of the claim, the time, place, and manner in which the claim arose; and (4) itemize the claimant's injuries and damages. The court held that it would not impose a requirement on claimants that is not specifically enumerated in the GML. In contrast to the First Department, the court characterized the purpose of the Notice of Claim as being solely to “notify the municipality, not the individual defendants” of a potential claim. See Blake, supra (citing Zwecker v. Clinch, 279 A.D.2d 572 (2d Dept. 2001).

The court also relied upon Scott v. City of New Rochelle, 44 Misc.3d 366 (Sup. Ct. 2014), which adopted the Fourth Department's reasoning, distinguishing the Second Department's decision in Matter of Rattner v. Planning Commission of the Village of Pleasantville, 156 A.D.2d 521 (2d Dept. 1989), because the issue was whether a Notice of Claim was required at all, not whether individual employees were required to be named therein. See Scott, supra. The court went on to approve the notion that the Notice of Claim is merely a vehicle by which to give a municipality an opportunity to investigate the facts and merits of a claim. See id.