JOHN JORDAN v. The City of New York, et al., Defendants. (2023)

Upon due consideration, this court denies defendants City of New York's (the "City" or "City defendants") motion to dismiss the 9th and 10th causes of action, which constitute the remaining causes of action in the complaint.¹ The Court also reverse its initial decision that the Notice of Claim only alleged the intentional torts of assault and battery which thus precluded a cause of action based upon general negligence.

The 9th cause of action alleges that the City was "negligent, reckless and careless in . . . hiring and retaining [the police officer]; allowing their employees to utilize excessive force; in improperly training their personnel and in other ways being negligent, reckless and careless." (Complaint at ¶ 53). The 10th cause of action alleges that the City's negligence caused the wrongful death of Mr. Jordan. (Complaint at ¶ 57). Plaintiff is no longer pursuing the negligent hiring or training aspects of the 9th cause of action but argues that it should be read as a general negligence claim. (City Ex. C at ¶ 10). Both causes of action "repeat, reallege, and reiterate" the allegations in the prior paragraphs including paragraphs 45—46, part of the 7th cause of action, which allege that the police officer intentionally handcuffed Jordan. That is the only mention of restraint in the entire Complaint.

The Notice of Claim against the City alleges that "at approximately 10:30 pm at the Bus Stop [the NYPD] used excessive force, unreasonable effort and procedures in subduing and attacking [Jordan]." It does not mention any further restraint at any other time or place.

By decision dated October 22, 2021, this Court denied plaintiff's motion to amend the notice of claim to read that the NYPD negligently restrained Jordan while he was at the hospital causing positional asphyxiation. General Municipal Law § 50-e(5) grants the court discretion to extend the time permitted for filing a late notice of claim, by considering whether (1) the petitioner has a reasonable excuse for the failure to serve a timely notice of claim; (2) the municipality received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in its defense on the merits. Mtr. of Shavreshyan v. City of New York, 207 AD3d 470 (2d Dept. 2022); N.F. v City of New York, 161 AD3d 1046, 1047 (2d Dept. 2018).

The operative document in a law suit is the notice of claim, since regardless of the wording in the complaint, theories of liability must be initially presented, directly or indirectly, in the notice of claim. See Gonzalez v. Povoski, 149 AD3d 1472, 1474 (2d Dept. 2017), and a complaint cannot set forth new causes of action. Moore v. County of Rockland, 192 AD2d 1021, 1024 (3d Dept. 1993). Furthermore, "the fact that [the new] alleged causes of action arose out of the same incident is not pivotal; rather, the nature of the claim and the theory of liability are determinative." Mazzilli v. City of New York, 154 AD2d 355, 356 (2d Dept. 1989). Thus, the question here is whether the notice of claim—not the complaint—supports a negligence theory of liability.

In particular, a court must consider whether the City acquired "actual knowledge" of the essential facts constituting the claim within 90 days after it arose or within a reasonable time thereafter. GML § 50-e(5); Mtr. of McGrue v. City of New York, 195 AD3d 932, 932 (2d Dept. 2021). See also, Mtr. of Shavreshyan, supra, 207 AD3d at 470 (while the presence of any one factor is not determinative, "it is generally recognized that the question of whether the municipal entity timely acquired actual knowledge is of great importance"); Mtr. of Catania v City of New York, 188 AD3d 1041, 1042 (2d Dept. 2020). In order to have "actual knowledge," the City must have knowledge of the facts that underlie the legal theory upon which liability is predicated in the proposed notice of claim. Mtr. of Islam v City of New York, 164 AD3d 672, 673 (2d Dept. 2018); Mtr. of Fethallah v New York City Police Dept., 150 AD3d 998, 1000 (2d Dept. 2017). Actual knowledge means that one can readily infer from the report that a potentially actionable wrong had been committed by the municipality. Mtr. of Ibrahim v. New York Ci0ty Tr. Auth., 202 AD3d 786, 787-788 (2d Dept. 2022); Mtr. of Islam, supra, 164 AD3d at 674. The City presented unrebutted evidence at the October hearing that it first learned of the claim that the NYPD negligently placed Jordan in handcuffs and failed to remove them while he was in the hospital, thus resulting in asphyxiation, when plaintiff served its first Verified Bill of Particulars in 2016, some 22 years after plaintiff first filed its lawsuit. Based upon the inordinately long time that it took for plaintiff to seek to amend its complaint, its lack of a reasonable excuse, and the fact that the City did not obtain actual notice, the Court denied the motion to amend.

The Court then inquired what precise causes of action plaintiff intended to prove, since its attorney Mr. Gallagher, who was not present at the hearing, had inexplicably agreed to drop the 7th and 8th causes of action. The Court held the City's motions to dismiss and or summary judgment in abeyance so that Mr Gallagher could expound upon his statement in his affirmation that he only intended to pursue the 9th cause of action for personal injuries and the 10th for plaintiff's wrongful death. The Order noted that the City seemed to be arguing that the 9th cause of action was limited to a claim of wrongful hiring, which the Court ruled it was not, and that plaintiff agreed it would not pursue negligent hiring as a part of its negligence claims since such claim was never included in the Notice of Claim. The court also commented during the May 16, 2022 hearing on the motion that the Notice of Claim did not distinguish between intentional conduct and negligence.( Tr. 24-25).

Given the above ruling, the issue becomes whether the original notice of claim could encompass a general allegation of negligence against the NYPD, and thus pave the way for plaintiff to pursue its 9th and 10th causes of actions and whether the NYPD was somehow put on notice that the notice of claim encompassed plaintiff's specific claim that the NYPD negligently placed Jordan in handcuffs and failed to remove them while he was in the hospital thus resulted in asphyxiation which ultimately resulted in his death. Defendant argues that the notice of claim only sounds in intentional tort and regardless of what it sounds in, that it utterly fails to notify the NYPD that it unlawfully restrained plaintiff in the hospital and that it would be gravely prejudiced were the court permit the 9th and 10th causes of action to go forward. It also notes that plaintiff dropped the 7th cause of action which alleges that the police intentionally handcuffed Jordan - the only mention in the actual complaint about handcuffs. Plaintiff contends that under the liberal construction afforded to complaints and notice of claims that are subject to a motion to dismiss, the court should find that the notice of claim sounds in negligence and that defendant was put on notice of its actual claim at the 50-h hearing.

The Court first reverses its ruling that the original Notice of Claim only sounded in intentional tort of assault and battery and that a cause of action for negligence, such as negligent restraint, could not be inferred from the notice of claim Upon review of the papers and close examination of the wording of the Notice of claim, there is nothing that limits the same to an intentional tort as the word "intentionally" is never used. Nor does the notice of claim preclude petitioner from pursuing the 9th and 10th causes of action.

A notice of claim must set forth the nature of the claim, "the time, place where and manner in which the claim arose," and "the items of damage or injuries claimed to have been sustained" (General Municipal Law § 50-e [2]). Castro v City of New York, 141 AD3d 456 (1st Dept. 2016) . Section 50-e does not require"those things to be stated with literal nicety or exactness" Id at 457 quoting Brown v City of New York, 95 NY2d 389, 393 (2000). A plaintiff need not "state a precise cause of action in haec verba" in his notice of claim. DeLeonibus v Scognamillo, 183 AD2d 697, 698 (2d Dept 1992). Rather, the test of the notice's sufficiency is whether it includes information sufficient to provide a municipal authority with an opportunity to investigate the claim" See, Brown, supra, 95 NY2d at 393;

In fact, in passing on the sufficiency of a notice of claim in the context of a motion to dismiss, a court is not confined to the notice of claim itself and need not limit its inquiry to its"four corners," D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 (1994); Castro, supra, 141 AD3d at 459; Luke v Metropolitan Transp. Auth., 82 AD3d 1055, 1056 (2d Dept 2011). In addition to examining the "four corners" of the notice of claim, the courts may consider testimony provided during an examination pursuant to General Municipal Law § 50-h ("50 h hearing"), as well as any other evidence properly before it to determine whether the municipality has been provided with sufficient notice. Delisser v. New York City Tr. Auth., 211 AD3d 907, 908 (2d Dept. 2022). See, D'Alessandro, supra, 83 NY2d at 898; Parker-Cherry v New York City Hous. Auth., 62 AD3d 845, 846. See, Ingrao v New York City Tr. Auth., 161 AD3d 683, 684 (1st Dept 2018) (court may look at evidence adduced at the 50-hearing to determine whether the notice of claim includes information sufficient to enable the city to investigate); Torres v City of New York, 125 AD3d 573, 574(1st dept 2015) ("The location description in the notice of claim, when considered in conjunction with plaintiff's 50-h testimony, was sufficient to enable defendant to conduct a prompt investigation, and assess the merits of plaintiff's claim").

While the instant notice of claim obviously did not allege negligent restraint at the hospital which resulted in asphyxiation, it does allege that the police used 'unreasonable effort and procedures in subduing and attacking [Jordan]" at the bus stop. However, this somewhat circumscribed notice of claim is further embellished by the testimony of Jacqueline Jordan, Administratrix, at the§ 50-h hearing. Jordan testified that she saw the Plaintiff restrained in the bed at the hospital with police handcuffs. While Jordan did not testify that the police had restrained plaintiff in the hospital, it is not farfetched for the NYPD to intuit that since the police had "subdued" and attacked Jordan at the bus stop, and accompanied him to the hospital, that they continued to subdue him in while en route to and during their presence at the hospital.

Petitioner also meets its burden of showing that the City will not be substantially prejudiced by its failure to submit a more specified notice of claim. CF Mtr of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 (2016); Mtr. of Grandberry v. City of New York, 169 N.Y.S.3d 660, 662 (2d Dept. 2022).² A petitioner's initial showing need not be extensive but "must present some evidence or plausible argument that supports a finding of no substantial prejudice." Newcomb, supra, 28 NY3d at 466. An important factor in determining prejudice is whether there is physical evidence recovered on the date of the incident, which is currently available for inspection, or whether there are witnesses to the incident who could testify or be deposed. These factors would permit the City to reconstruct the conditions on the date of the incident. See, Newcomb, supra, 28 NY3d at 466-467; Alvarez v. New York City Health & Hosps. Corp. (North Cent. Bronx Hosp.), 101 AD3d 464 (1st Dep't 2012) (Lack of substantial prejudice established where hospital records, which evidenced an investigation into the cause of the plaintiff's condition, provided "an extensive paper trail and preserved all of the essential facts relating to this claim"); Mosley v. New York City Hous. Auth., 2022 NY Misc. LEXIS 6336 (Sup. Ct. Kings Co. 2022).

While the record is unclear as to whether plaintiff sought to obtain police records during discovery, one can only assume that the police who initially subdued and handcuffed Jordan and who then accompanied him in the ambulance to the hospital would have written a report about the incident at the bus and the follow up. The record also indicate that a police sergeant and officer were present at the emergency room, that Jordan remained handcuffed, and that the officer wrapped a sheet around Jordan's legs because he was kicking in the bed. Finally, the record indicates that at some point a police officer requested that the handcuffs and sheet be removed. One can assume that the continued police involvement in the Jordan incident through the ambulance ride to standing guard at the hospital would have been chronicled. Since Jordan died in the hospital, presumably while the police were still there, one could only assume that the police who have written a report about his death. Since Jacqueline Jordan testified about the deceased being restrained in handcuffs at the hospital at the 50-h hearing, the City and NYPD cannot argue that they were not put on notice until 16 years later when plaintiff answered a bill of particulars.

In light of the above, this court denies defendants motion to dismiss and or motion for summary judgment dismissing the 9th and 10th causes of action. The case shall therefore proceed to trial on these causes of action.

This constitutes the Decision and Order of the Court.

DATED: February 20, 2023

KATHERINE A. LEVINE, J.S.C.

FOOTNOTES

1.   Plaintiff previously withdrew all claims against the the NYC Transit Authority and against the NYC Health and Hospital Corporation and the announced that it was no longer pursuing the 7th cause of action against the City

2.   Although the aforementioned cases discussed how a plaintiff may overcome a defendant's claim of prejudice within the context of filing a late notice of claim, the courts' rationale is equally applicable here.

Katherine A. Levine, J.