Rodriguez v. City of New York

Recitation per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: Papers (Non-Efiled Case) Petitioner’s documents provided on July 9, 2024 to the Court: 1. Medical Bills dated November 28, 2022. 2. Petitioner’s handwritten emergency petition dated March 7, 2024. 3. Petitioner’s Claim filed with office of the Comptroller March 11, 2024. 4. Petitioner’s handwritten recitation of alleged occurrences at the Office of the Comptroller. 5. Petitioner’s handwritten recitation of the facts in Response to Stefan Kefgan’s police report. 6. Petitioner’s Personal Injury Claim Form filed with the Comptroller’s Office dated March 4, 2024. 7. Petitioner’s Family Offense Order of Protection dated May 1, 2024. 8. Petitioner’s Family Court Order of Protection Dated March 20, 2023. 9. Certificate of Disposition of CR-035518-22KN dated August 18, 2023. 10. Certificate of Disposition of CR-006632-23NY dated August 18, 2023. 11. Certificate of Disposition of CR-006633-23NY dated August 19, 2023. 12. Certificate of Disposition of CR-029414-22QN dated March 19, 2024. 13. Certificate of Disposition of CR-030640-22QN dated March 19, 2024. 14. Certificate of Disposition of CR-006816-23QN dated March 19, 2024. 15. Certificate of Disposition of CR-028411-22QN dated September 12, 2023. 16. Petitioner’s Domestic Incident Reports dated November 12, 2022, November 30, 2022, December 5, 2022 and April 26, 2023. The City Respondent submitted Affirmation in Opposition dated June 11, 2024 DECISION/ORDER Upon the foregoing documents and Upon the foregoing cited papers and oral argument on July 9, 2024, Petitioner’s Motion for Leave to Serve Late Notice of Claim (“NOC”) upon Respondent The City of New York (“City”) is DENIED. Whether to accept a late NOC is within the sole discretion of the Court. Such decision requires the Court to consider several factors, including whether the movant has a reasonable excuse for the delay, whether the municipality acquired actual notice of the essential facts of the claim within the 90-day statutory period or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. See, e.g., Matter of Salazar v. City of New York, 212 A.D.3d 633, 634 (2nd Dep’t 2023); Matter of Rios v. County of Nassau, 212 A.D.3d 631, 632 (2nd Dep’t 2023); Matter of Lang v. County of Nassau, 210 A.D.3d 773, 774 (2nd Dep’t 2022). Petitioner brings this action following her multiple arrests between November 2022 and March 2023¹. On March 12, 2024, Petitioner filed an Order to Show Cause (“OSC”) seeking to file a late NOC, which was 224 days past the statutory deadline. Respondent asserts that giving Petitioner leave to file a late NOC will result in prejudice to the City. During oral argument, Petitioner provided additional documentation to support her emergency application related to arrests in New York County on March 8, 2023², in Queens County on March 9, 2023³, November 13, 2022⁴, November 25, 2022⁵ and December 8, 2022⁶, and in Kings County on December 7, 2022⁷. A Notice of Claim was not filed regarding any of these arrests before the 90-day statutory deadline. Petitioner failed to demonstrate a reasonable excuse for the untimely filing of the NOC. Petitioner provided documentation of her arrests in the counties of Kings, New York and Queens. Petitioner was arrested in Kings County on December 7, 2022 and the case was dismissed May 3, 2023 and sealed July 24, 2023⁸. In New York County, Petitioner was arrested twice on March 8, 2023 and both cases were dismissed June 28, 2023 and sealed August 18, 2023⁹. In Queens County Petitioner was arrested November 13, 2022 and Petitioner pled guilty to Disorderly Conduct (Penal Law §240.20) September 7, 2023¹⁰. Petitioner was also arrested in Queens County November 25, 2022 and the case was dismissed following an Adjournment in Contemplation of Dismissal (“ACD”) issued September 7, 2023 and sealed on March 19, 2024¹¹. Petitioner was arrested again in Queens County December 8, 2022 and the case was dismissed following another ACD issued September 7, 2023 and sealed March 19, 2024¹². Petitioner’s final arrest in Queens County was March 9, 2023 and that case was dismissed following an ACD issued September 7, 2023 and sealed March 19, 2024¹³. Petitioner also provided health records and photographs related to a pregnancy¹⁴ as well as copies of Domestic Incident Reports (“DIR”) related to Petitioner’s interactions with non-parties Joseph Caputo and Stefan Kefgen¹⁵. The incidents Petitioner described to the Court fail to provide a reasonable excuse for the delayed filing of a NOC. Therefore the application is denied. Petitioner argues that the NOC was timely filed. The Court disagrees as Petitioner failed to present evidence to support this portion of her claim. Petitioner provided a claim number handwritten on some of the documents she submitted to the Court¹⁶, but she failed to provide documentation of actual service¹⁷. The Personal Injury Claim Form Petitioner submitted¹⁸ was insufficient to serve as proof of timely filing the NOC. Finally, Respondent would be substantially prejudiced by such extensive delay, including the City’s inability to fully investigate the claims alleged. Consequently, the application for leave to file late NOC is denied. This constitutes the Decision and Order of the Court. Dated: September 16, 2024