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Joaquin Orellana CASTANEDA, Petitioner(s), v. COUNTY OF SUFFOLK; Steve Bellone, County Executive, County of Suffolk, in his official capacity; Suffolk County Sheriff's Office; Vincent DeMarco, Sheriff, Suffolk County Sheriff's Office, in his official capacity; and other individuals in charge to be identified, Respondent(s).
Upon the reading and filing of the following papers in this matter: (1) Notice of Petition, dated October 24, 2017, and supporting papers; (2) Affirmation in Opposition, dated December 6, 2017; Reply Memorandum, dated January 9, 2018; it is
ORDERED that the motion made by petitioners pursuant to General Municipal Law § 50–e seeking leave to file a late notice of claim and for an order deeming the notice of claim already served upon Respondents to have been timely served nunc pro tunc is granted.
This is an application for an order (1) granting petitioner leave to serve a late notice of claim upon respondents pursuant to General Municipal Law § 50–, and (2) deeming the notice of claim previously served upon respondents to have been timely served nunc pro tunc. The application is opposed by the respondents. For the reasons that follow, the application is granted.
According to the averments of the petition, petitioner Joaquin Orellana Castaneda was arrested in Central Islip, New York in the early morning hours of April 23, 2017, for alleged violations of the Vehicle and Traffic Law. He was brought before a Suffolk County District Court judge, who set Mr. Orellana's bail at $1,000 and remanded him to the custody of the Suffolk County Sheriff's Office. Mr. Orellana spent the remainder of the day and night at the Sheriff Office's Yaphank Correctional Facility, and the following day, April 24, 2017, he was interviewed there by U.S. Immigration and Customs Enforcement (“ICE”) agents. The petition avers that Mr. Orellana was told that “if he paid his bail, he would be released and would eventually have to appear at an immigration hearing” and that Mr. Orellana's cousin in fact paid Mr. Orellana's $1,000 bail that same day—April 24, 2017, but Mr. Orellana continued to be held at the Yaphank Correctional Facility through April 26, when he was transferred to the Riverhead Correctional Facility. He remained at the Riverhead Correctional Facility until “on or about” the next day, April 27, 2017, when he was transferred into ICE's custody and transported to ICE's Varick Street Detention Center. After questioning there and being provided, for the first time, with a copy of the form I–200 administrative arrest warrant, he was transferred to the Bergen County, New Jersey Jail.
The petition further avers that Mr. Orellana was not informed while he was in the custody of the Sheriff's Office that his continued detention by the Sheriff's Office after his bail had been posted was pursuant to an administrative request made by ICE to the Sheriff's Office, embodied in a so-called ICE “detainer” accompanied by a form I–200 administrative arrest warrant, nor was he afforded any practical opportunity during that time to challenge his ongoing detention. In a lawsuit filed in United States District Court for the Eastern District of New York, subsequently amended, inter alia, to add a second plaintiff, Mr. Orellana seeks to challenge both (1) ICE's statutory authority to use detainers unaccompanied by judicially authorized arrest warrants to cause other federal, state and local law enforcement officials to keep individuals initially detained on other charges from being released “well after any other basis for custody has expired,” and the federal constitutionality of its doing so under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and (2) the state and federal constitutionality of the “policy and practice” of the Suffolk County Sheriff's Office and its officials of complying with the ICE detainers by holding individuals “well past the time when they were due to be released.” In addition to injunctive and declaratory relief, Mr. Orellana also seeks an award of compensatory damages together with pre- and post-judgment interest, costs and attorneys' fees.
The complaint in the federal action was filed on July 18, 2017 and served on the respondents, along with the summons, on July 25, 2017, 89 days after Mr. Orellana alleges he was transferred from the custody of the Suffolk County Sheriff's Office to ICE—April 27, 2017. On October 23, 2017, after the non-federal defendants in the Eastern District action raised the issue, petitioner served a formal Corrected Notice of Claim 1 upon the respondents, to which was annexed copies of the original and amended complaints in the Eastern District action. The current petition requests that the court grant Mr. Orellana leave, pursuant to General Municipal Law § 50–e, to serve late notice of claim upon the respondents and that the corrected notice of claim, dated October 23, 2017 and served upon respondents on that date, be deemed timely served nunc pro tunc. Respondents oppose the petition, contending that Orellana has failed to offer a reasonable excuse for the delay in serving notice of claim and that they would be substantially prejudiced if the petitioner were granted the relief he is requesting, arguing, among other things, that the complaint in the Eastern District action did not provide them with actual knowledge of the facts constituting Orellana's claim within a reasonable time after the claim's accrual.
A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality, a public benefit corporation or an officer thereof (see General Municipal Law 50–e[a]; Brown v. City of New York, 95 NY2d 389 ). With respect to most torts, service of the notice of claim must be made within ninety days after the claim arises (General Municipal Law § 50–e[a]). Tempering the severity of the ninety-day requirement, however, General Municipal Law § 50–e  permits courts as a matter of discretion, and upon consideration of all relevant facts and circumstances, to grant permission to claimants to serve late notices of claim (see Cruz v. New York, 149 AD3d 835 [2d Dept 2017]; Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d 776, 777 [2d Dept 2010]).
The key factors in determining whether to allow service of a late notice of claim are (1) whether the petitioner has demonstrated a reasonable excuse for his or her failure to serve a timely notice of claim, (2) whether the municipality acquired actual notice of the essential facts of the claim within ninety days after the claim arose or within a reasonable time thereafter, and (3) whether the delay has substantially prejudiced the municipality in its defending against the claim (see General Municipal Law § 50–e; City of New York v. County of Nassau, 146 AD3d 948 [2d Dept 2017]; Allende v. City of New York, 69 AD3d 931, 933 [2d Dept 2010]). The presence or absence of any one of these factors is not necessarily dispositive of an application for leave to file a late notice of claim (see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 AD3d 758 [2d Dept 2006]), and the absence of a reasonable excuse is not necessarily fatal to an application pursuant to General Municipal Law § 50–e  (see Brownstein v. Incorporated Vil. of Hempstead, 52 AD3d 507 [2d Dept 2008]; Jordan v. City of New York, 41 AD3d 658, 659 [2d Dept 2007]; Matter of March v. Town of Wappinger, 29 AD3d 998 [2d Dept 2006]). Nonetheless, “whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight” (Matter of Dell'Italia, 31 AD3d at 758).
In support of his application, petitioner urges, first, that service of the complaint in the civil action he is prosecuting in the Eastern District of New York provided respondents with actual knowledge of the essential facts constituting his claim within a reasonable amount of time after the claim's accrual. Indeed, although the parties have assumed that the 90–day period for providing notice of claim began to run when Mr. Orellana alleges his illegal detention by the Sheriff's Office began—i.e., on April 24, 2017, after the bail set by the Suffolk County District Court was paid by Mr. Orellana's cousin—the law is clear that in the circumstances presented here, a claim under 42 USC § 1983 that is the functional equivalent of a false arrest or false imprisonment claim, including a claim alleging detention pursuant to allegedly insufficient or invalid process, accrues, as a matter of federal law, when the alleged unlawful imprisonment ends, which, in a case such as this, is “at the time the claimant becomes detained pursuant to legal process” (Wallace v. Kato, 549 U.S. 384, 397  [emphasis added] [although state law provides the length of the statute of limitations applicable to a claim for false arrest and imprisonment under 42 USC § 1983, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law,” id. 549 US at 388]2 ). Moreover, to the extent the petitioner is also asserting state law claims, New York law is functionally no different from federal law, fixing the accrual date for claims for false arrest and false imprisonment, and therefore the date from which the 90–day period for serving notice of claim pursuant to General Municipal Law 50–e is measured, as the date on which the allegedly unlawful detention ended (see Ragland v. New York City Hous. Auth., 201 AD2d 7, 9 [2d Dep 1994], citing Sanchez v. County of Westchester, 146 AD2d 620 [2d Dept 1989], and Jackson v. Police Dept. 119 AD2d 551, 552 [2d Dept 1986]).
Thus, whether measured by the federal rule of accrual or the corresponding New York rule, the respondents were served with Orellana's complaint in his Eastern District civil action within the ninety-day period set by General Municipal Law § 50–e. Although respondents, citing the Appellate Division's decision in Padovano v. Massapequa Union Free Sch. Dist., 31 AD3d 563 [2d Dept 2006], assert that the Eastern District complaint “is wholly insufficient to establish actual knowledge of the essential facts constituting the claim,” the reality is that complaint is fulsome in the factual detail it provides, is a far cry from the cursory accident report the Appellate Division found wanting in Padovano and more than amply apprised respondents of the “essential facts” constituting his claim (see, e.g., Grieco v. Fugaro, 61 AD2d 903, 904, 402 N.Y.S.2d 829 [1st Dept 1978] (order dismissing medical malpractice action against physician and county hospital that employed him for failure to comply with General Municipal Law §§ 50–d and 50–e, without prejudice to plaintiff seeking judicial acceptance nunc pro tunc of summons and complaint in separate federal action in lieu of notice of claim: “There can be no dispute that the summons and complaint in the Federal action served to provide the county hospital and its attorneys with actual knowledge of the essential facts of the claim”), facts which concern matters that are alleged to have occurred while Orellana was in respondents' custody and under the control of its employees (see, e.g., Picciano v. Nassau Cty. Civil Serv. Comm'n., 290 AD2d 164, 174, 736 N.Y.S.2d 55, 63 [2d Dept 2001]); Matter of Ragland v. New York City Hous. Auth., 201 AD2d 7, 11 [2d Dept 1994]; Tatum v. City of New York, 161 AD2d 580 [2d Dept 1990]; Baker v. Board of Educ., 127 AD2d 967 [4th Dept 1987]).
Second, petitioner contends that any delay in the formal service of notice of claim has not prejudiced respondents in defending against his claims as they had timely actual knowledge of the essential facts from which those claims arise. Although respondents argue that the petitioner has not met his burden of establishing that they have not been prejudiced in their defense on the merits as a result of Orellana's delay in serving formal notice of claim, the law is well settled that where, as here, the petitioner has demonstrated that the respondents “acquired actual knowledge of the facts constituting the claim within the 90–day statutory period or a reasonable time thereafter” (Nurse v. City of New York, 87 AD3d 543, 544—45 [2d Dept 2011], citing Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d 776, 777–778 [2d Dept 2010]; Matter of Leeds v. Port Washington Union Free School Dist., 55 AD3d 734, 735 [2d Dept 2008]), the petitioner's burden of demonstrating the absence of substantial prejudice to the respondent in defending the claim has been met (see Nurse v. City of New York, supra, 87 AD3d at 544, citing Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d at 778; Matter of Allende v. City of New York, 69 AD3d 931, 933 [2d Dept 2010]). Indeed, respondents cite no aspect of their defense that has in any way been impaired by the absence of an earlier-served formal notice of claim.3
Finally, with respect to respondents' contention that petitioner has not offered a reasonable excuse for his delay in serving notice of claim, the sole explanation offered by petitioner is the belief that service of a notice of claim was not required as a predicate to the assertion of the claims he is pressing in his federal action and that such notice was served and the current application made out of an abundance of caution after respondents raised the issue in the federal action.4 In any event, the absence of a reasonable excuse is not in and of itself fatal to an application for leave to file a late notice of claim (see Brownstein, supra, 52 AD3d at 509). On the contrary, where, as here, actual knowledge and an absence of substantial prejudice are present, the claimed failure of the petitioner to provide a reasonable excuse is not dispositive and the application may nonetheless be granted (see Cruz, supra, 149 AD3d at 836).
For all of the above reasons, the court grants petitioner leave to serve a late notice of and deems the notice of claim served on October 23, 2017 timely served nunc pro tunc.
The foregoing constitutes the decision and order of the Court.
1. According to the petition, the Corrected Notice of Claim corrected a notice of Claim that was served on the respondents on October 13, 2017.
2. In Wallace v. Kato, supra, the petitioner, Wallace, whose state-court conviction for murder had been vacated by the by the Illinois Appellate Court on the grounds that the effects of his arrest without probable cause had not been “sufficiently attenuated to render his statements” in his station-house confession “admissible” (549 US at 387), subsequently brought an action in District Court pursuant to 42 USC § 1983 against the City of Chicago and several city police detectives seeking damages for, inter alia, his unlawful arrest. The District Court granted summary judgment for defendants, holding that Wallace's claims were time barred, and the Seventh Circuit Court of Appeals affirmed. After granting certiorari, the Supreme Court affirmed as well, holding that Wallace's claims accrued, and the applicable two-year statute of limitations began to run, not when the charges against him were dropped after his conviction was vacated and he was finally released from custody, but when, following his initial detention and interrogation, he was brought before a magistrate and bound over for trial.Justice Scalia, writing for the majority of the Court, acknowledged that although under common-law tort “principles, it is “ ‘the standard rule that [accrual occurs] when the plaintiff has ‘a complete and present cause of action,” ’ ” 549 US at 388, quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201  (quoting Rawlings v. Ray, 312 U.S. 96, 98 )—“ ‘that is, when ‘the plaintiff can file suit and obtain relief,’ ” (id., quoting Bay Area Laundry, supra, at 201—and that Wallace—at least conceptually—“could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date” (id., 549 US at 388), false arrest and false imprisonment claims—which provide “ ‘the closest analogy to claims of the type considered here,’ ” id., 549 US at 388, quoting Heck v. Humphrey, 512 U.S. 477, 484 (1994) and citing 1 D. Dobbs, Law of Torts § 47, p. 88 (2001)—are necessarily different from other tort claims and therefore require “a refinement to be considered, arising from the common law's distinctive treatment of the torts of false arrest and false imprisonment”:False arrest and false imprisonment overlap; the former is a species of the latter. “Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” M. Newell, Law of Malicious Prosecution, False Imprisonment, and Abuse of Legal Process § 2, p. 57 (1892) (footnote omitted). See also 7 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 27:2, pp. 940–942 (1990). We shall thus refer to the two torts together as false imprisonment. That tort provides the proper analogy to the cause of action asserted against the present respondents for the following reason: The sort of unlawful detention remediable by the tort of false imprisonment is detention without legal process, see, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 11, p. 54, § 119, pp. 885–886 (5th ed.1984); 7 Speiser, supra, § 27:2, at 943–944, and the allegations before us arise from respondents' detention of petitioner without legal process in January 1994. They did not have a warrant for his arrest. The running of the statute of limitations on false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: “Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.” 2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed.1916); see also 4 Restatement (Second) of Torts § 899, Comment c (1977); A. Underhill, Principles of Law of Torts 202 (1881).The running of the statute of limitations on false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: “Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.” 2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed.1916); see also 4 Restatement (Second) of Torts § 899, Comment c (1977); A. Underhill, Principles of Law of Torts 202 (1881).549 U.S. at 388–89.
3. They do note that discovery has been stayed in Orellano's federal action pending decision on the motion they have filed to dismiss that action. The order they attach embodying that stay does, however, recite that the stay of discovery was granted on defendants' motion in that action.
4. The applicability of the General Municipal Law's notice of claim requirements to damages claims based upon alleged violations of federal and State constitutional rights, as well as statutory violations, is now well-established (see, e.g., 423 S. Salina St., Inc. v. City of Syracuse, 68 NY2d 474, 492, 503 N.E.2d 63 ; Pastorello v. City of New York, No. 95 CIV. 470(CSH), 2001 WL 1543808, at *9 [S.D.NY Dec. 4, 2001]). Petitioner, argues, however—citing to and quoting from Stanton v. Town of Southold, 266 AD2d 277 [2d Dept 1999]—that his “demand for money damages is incidental and subordinate to the requested injunctive relief.” The only relief sought by the current petition, however, is leave to serve late notice of claim and an order deeming the corrected notice of claim petitioner served on October 23, 2017 timely served nunc pro tunc. Issues related to the relief sought and available to plaintiff in the civil action he is prosecuting in the Eastern District of New York are issues to be resolved in that proceeding and are not properly before this court.
Sanford N. Berland, J.
Response sent, thank you
Docket No: 17–05531
Decided: June 14, 2018
Court: Supreme Court, Suffolk County, New York.
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