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HAYFOOD v. CITY OF NEW YORK

August 30, 1999

WILLIE HAYGOOD, ET ANO., PLAINTIFFS,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Plaintiff Willie Haygood brings this Section 1983 action on his own behalf and sues also for loss of consortium on behalf of four minor children. Rebecca Haygood, an adult, joins him as plaintiff on a loss of consortium claim. The second amended complaint names as defendants the City of New York, three police officers, and an unspecified number of "John" and "Jane Does."

The essence of the claim set forth in the second amended complaint is false imprisonment. Plaintiff Willie Haygood contends that he was arrested on January 11, 1997 on an outstanding warrant for another person named Willie Haygood who was born on the same date as plaintiff, that he informed the named officers and others that they had the wrong person, and that he was held for 16 days before the authorities so concluded and released him. The same thing allegedly occurred again on December 30, 1997, although defendant on that occasion allegedly was held in custody for more than a month before being released.

Two motions presently are before the Court. The first seeks leave to file a third amended complaint adding claims against New York County Assistant District Attorney Martha Bashford and a corresponding respondeat superior claim against the City.*fn1 The second seeks to substitute ten additional assistant district attorneys and New York County District Attorney Robert M. Morgenthau for the "Roe" defendants in the proposed third amended complaint.*fn2

The Motion for Leave to File a Third Amended Complaint

The proposed third amended complaint would add Assistant District Attorney Martha Bashford as a defendant both on the Section 1983 and the pendent state law claims. All defendants, proposed and existing, oppose the motion insofar as it seeks to add state law claims on the ground that such an amendment would be futile because the complaint fails to allege compliance with the requirements of Sections 50-e and 50-i of the New York General Municipal Law.*fn3 They acknowledge that compliance with the General Municipal Law provisions is not required with respect to the Section 1983 claim, but assert that the proposed Section 1983 claim against her is insufficient as a matter of law.

Notice of Claim

The provisions relied upon require that a plaintiff asserting state law tort claims against a public corporation (as defined) or its employees file a notice of claim with the entity within 90 days after the occurrence giving rise to the claim and commence suit within one year and 90 days thereafter. Compliance with these statutes, moreover, is an element of plaintiff's cause of action which must be pleaded in the complaint.*fn4

Here, the proposed third amended complaint does not allege compliance with the General Municipal Law. Hence, strictly as a technical matter, leave to amend might well be denied on the ground that this failure alone would make amendment futile. But the Court need not rest on pleading technicalities alone.

The papers before the Court indicate that plaintiffs concededly filed no notice of claim with respect to the January 1997 arrest and ensuing detention, that plaintiff Rebecca Haygood did not file a timely notice of claim with respect to the December 1997 arrest and ensuing detention, and that plaintiff Willie Haygood filed a notice of claim regarding the December 1997 arrest and subsequent detention with the Comptroller of the City of New York on or about April 24, 1998. In these circumstances, Willie Haygood's proposed claims against Ms. Bashford with respect to the January 1997 arrest and detention plainly are insufficient not only because the complaint fails to allege compliance with the General Municipal Law, but because the papers before the Court establish that it could not do so.

The situation with regard to the December 1997 arrest and subsequent detention is slightly more complicated. Although not set forth in the complaint, papers submitted by plaintiff in a state court proceeding, copies of which are attached to the defendants' papers on this motion, show that Willie Haygood was released from custody following that arrest on January 30, 1998, slightly less than 90 days before the filing of his April 24, 1998 notice of claim with the City. Accordingly, the notice of claim appears to have been timely with respect to the final days of his confinement, although not with respect to the bulk of it or the arrest. But that does not get plaintiff all the way home.

To begin with, the District Attorney is a constitutional officer of New York County, not an employee or agent of the City of New York.*fn5 Assistant district attorneys are employees of the district attorney, not the City.*fn6

It is a prerequisite to the commencement of a personal injury action against a public corporation, as defined in the General Construction Law, or its officer or agent, that the plaintiff first have served a notice of claim on the public corporation.*fn7 The General Construction Law defines "public corporation" to include a "municipal corporation," which in turn is defined to include a county.*fn8 Hence, in order to sue ADA Bashford, plaintiff was obliged first to serve a notice of claim on the County of New York.

Section 50-e of the General Municipal Law requires that notice be served upon a public corporation "by delivering a copy [of the notice of claim] personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation."*fn9 Section 311 of the Civil Practice Law and Rules requires that personal service upon a county be made upon "the chairman or clerk of the board of supervisors, clerk, attorney or treasurer" of the county.*fn10 While New York County does not have a board of supervisors,*fn11 a county attorney or a county treasurer,*fn12 it does have a county clerk, who is a constitutional officer.*fn13 As plaintiffs do not claim to have served the county clerk or any other county official designated in CPLR ยง 311, they did not satisfy the prerequisites to the commencement of an action against ADA ...


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