This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff: Burns Harris
Defendant: Michael Cardozo, Esq.
Paul A. Victor, J.
Plaintiff moves by order to show cause to deem his late notice of claim to have been timely served upon the defendant City of New York, nunc pro tunc. The defendant opposes and cross moves for the venue of the matter to be changed from Bronx County to Queens County, or, in the alternative for dismissal of the complaint.
AN INTERESTING (SOMEWHAT NOVEL) ISSUE
Does CPLR 504(3) mandate that an action against the City of New York must be brought and venued only in the county where a "continuing tort" first occurred ; or can the action be commenced by the plaintiff in any County in the City of New York where the tort continued?
The plaintiff, a Queens resident, was arrested on January 17, 2006 outside of his home in Queens County and charged in that County with obstructing governmental administration and resisting arrest. Upon his arrest he was taken to the 107th precinct in Queens County, and thereafter confined, pending trial, in different facilities, including Riker's Island, which is in the territorial waters of Bronx County. Pending trial, he was confined at Riker's Island, in Bronx County until January 30, 2006. The plaintiff ultimately went to trial in the County of Queens and on June 1, 2006 was acquitted of all charges brought against him. He did not commence any civil proceedings or retain an attorney to do so until after his acquittal.
Plaintiff retained his present attorney on August 24, 2006; and on August 29, 2006, filed a (partially untimely) notice of claim against the City, alleging false arrest, false imprisonment, assault and battery, negligent hiring and retention, malicious prosecution and a violation of the plaintiff's constitutional rights. Although the notice of claim for malicious prosecution was timely filed the 90 day period had expired for claims alleging false arrest, false imprisonment, assault and negligent retention. The alleged civil rights/constitutional violations are not subject to the notice of claims requirements. In any event, a 50-h hearing was held on October 18, 2006, at which the plaintiff gave testimony as to the underlying incident which gave rise to each cause of action.
The plaintiff commenced an action by the filing of a summons and verified complaint in Bronx County on January 5, 2007. As in the notice of claim, the complaint alleges causes of action for false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, and a violation of the plaintiffs constitutional rights.
On January 26, 2007, the defendant served its answer to the complaint, and included with its answer a demand, pursuant to CPLR 504(3) to change venue to the county of Queens.By Order to Show Cause, dated March 16, 2007, the plaintiff moved pursuant to GML Section 50 to extend his time to serve a notice of claim ( for false arrest, false imprisonment, assault and battery) and to have it deemed to have been timely served upon the defendant City of New York.The City cross -moved for a change of venue to the County of Queens, or in the alternative for dismissal of the action .
CONTENTIONS OF THE PARTIES
Plaintiff argues initially that all causes of action are properly venued since one of them ( false imprisonment ) took place in part in Bronx County, and contends therefore that the court has both the jurisdiction and discretion to grant the motion. Plaintiff argues further that since the claims for malicious prosecution and violation of civil rights are timely, and since the City's investigation on those claims is the same as for all the remaining claims, there is clearly no prejudice to the City to permit a late service of a notice of claim for the tardy claims and to allow the entire action to proceed. Plaintiff argues that, in any event, there will be no prejudice to the defendants if this relief is granted since the defendant had ...