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Bumbury v. City of New York

May 28, 2009


Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered April 17, 2007, which denied defendant's motion to dismiss the complaint and granted plaintiff's cross motion to amend the complaint, modified, on the law, to dismiss that part of the complaint alleging a claim for malicious prosecution, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Nardelli, Buckley, Freedman, JJ.


A cause of action for malicious prosecution accrues when the criminal proceeding terminates favorably to the plaintiff (Boose v City of Rochester, 71 AD2d 59, 65 [1979]). Thus, to the extent that plaintiff alleges malicious prosecution by the Bronx County District Attorney, that claim accrued on March 4, 2002, when the sodomy indictment was dismissed, and with regard to any claim of malicious prosecution, plaintiff's notice of claim served March 19, 2004 and this action commenced March 3, 2005 are untimely. In any event, we note that plaintiff cross-moved to amend his complaint to remove any claims of malicious prosecution.

On the other hand, a cause of action for unlawful imprisonment accrues "when the confinement terminates" (Boose v City of Rochester, 71 AD2d at 65). Plaintiff's cause of action alleging unlawful imprisonment thus accrued upon plaintiff's physical release from custody (Nunez v City of New York, 307 AD2d 218, 219 [2003]; Allee v City of New York, 42 AD2d 899 [1973]), which took place on February 26, 2006, not December 18, 2001, when he was apparently transferred to federal custody to be deported. The City's argument that the federal custody has no bearing on its motion to dismiss lacks merit. The federal detention was rooted in plaintiff's wrongful sodomy conviction, after the City provided federal authorities with the record of plaintiff's conviction, but later failed to remove it from his criminal history, even though the conviction was vacated and the indictment ultimately dismissed.

Given the absence of prejudice to defendant, the court did not improvidently exercise its discretion by, in effect, granting plaintiff leave to amend the complaint to clarify his claims (see Zornberg v North Shore Univ. Hosp., 29 AD3d 986 [2006]; Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co. of Pittsburgh, Pa., 298 AD2d 180 [2002]).

Upon review of the Monell claim (Monell v Department of Social Servs. of City of N.Y., 436 US 658 [1978]) raised in the original complaint, we find that plaintiff has given the City fair notice of a custom or policy that would establish municipal liability under 42 USC § 1983 by alleging gross negligence in failing properly to train, supervise and discipline its employees, resulting in injury. Such failure, it is alleged, amounted to "deliberate indifference" to the rights of individuals coming in contact with those employees (Canton v Harris, 489 US 378, 388 [1989]; see also Pendleton v City of New York, 44 AD3d 733 [2007]; Johnson v Kings County Dist. Attorney, 308 AD2d 278, 289-290 [2003]; and see generally Ramos v City of New York, 285 AD2d 284, 303-306 [2001]).

All concur except Nardelli and Buckley, JJ. who dissent in part in a memorandum by Buckley, J. as follows:

BUCKLEY, J. (dissenting in part)

I dissent only with respect to the cause of action for false imprisonment, which I would dismiss for failure to serve a timely notice of claim.

While plaintiff was incarcerated at Rikers Island in 1998 pending a parole violation hearing, an inmate, Joseph Davis, accused him of sexual assault. Following dismissal of the parole violation charge, plaintiff was released on bail, but was returned to custody on December 14, 1999, and shortly thereafter was convicted of sodomy in the first degree and sentenced to a prison term of 12 years.

During the course of a civil action by Davis against the City and individual correction officers, the City produced previously undisclosed Unusual Incident Reports generated by the New York City Department of Correction (DOC) memorializing statements of an inmate who claimed that Davis had divulged to him intentions to falsely accuse fellow inmates of sexual assault in order to obtain a transfer to a different cell. Plaintiff subsequently obtained copies of those reports, and in 2001 he moved to vacate the judgment of conviction based on the People's failure to disclose the exculpatory Brady*fn1 material consisting of the DOC Unusual Incident Reports. On November 5, 2001, Bronx Supreme Court vacated the conviction and ordered plaintiff to be released. The DOC released plaintiff on December 18, 2001 into the custody of the United States Immigration and Naturalization Service (INS), which had issued a detainer for his deportation, allegedly based on the mistaken belief that the judgment of conviction was still extant. On March 5, 2002, the indictment against plaintiff was dismissed on the People's recommendation, because the previously undisclosed evidence "contradicts Davis' testimony and supplies him with a possible motive to lie, [and] the People would be unable to prove this case beyond a reasonable doubt." However, the INS, later reorganized within the Department of Homeland Security (see 6 USC § 291; Blake v Carbone, 489 F3d 88, 92 [2d Cir 2007]), did not release him until early 2006, purportedly based on the continuing erroneous impression that the conviction, or at least the charges, were still valid.*fn2

While still in federal immigration custody, plaintiff, by his attorney, served the City with a notice of claim on March 19, 2004, and filed a summons and complaint on March 3, 2005. Plaintiff asserted claims for false imprisonment, negligence, and violation of civil rights, grounded on the theory that the recklessness or negligence of correction officers in failing to turn over exculpatory evidence to the District Attorney's Office, and the failure of the City to properly train and supervise correction officers, caused him to be ...

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