The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff, Nathaniel C. Harris ("Harris" or "the Plaintiff") commenced this action against the Town of Islip Housing Authority ("Housing Authority"), Richard Albanese as an employee of the Town of Islip Housing Authority ("Albanese" and together with the Housing Authority the "Town Defendants"), the Suffolk County Police Department ("the SCPD"), the Department of Housing and Urban Development ("HUD") and Miguel Collazo as a Special Agent of HUD ("Collazo" and together with HUD "the Federal Defendants"), seeking money damages for false arrest, malicious prosecution and negligence.
Presently before the Court is: (1) a motion by the SCPD pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) to dismiss the complaint as time-barred by the statute of limitations; and (2) the Plaintiff's response to an order to show cause issued by the Court addressing whether the negligence claims should be dismissed against the Town Defendants. For the reasons that follow, the Court: (1) dismisses the complaint in its entirety as against the SCPD with prejudice; (2) dismisses the negligence claim and therefore the complaint in its entirety as against Richard Albanese; and (3) orders the Plaintiff to show cause why the negligence claim should not be dismissed as against the Housing Authority as a matter of law.
On September 9, 2005, following an investigation into the alleged unlawful receipt of housing benefits by the Plaintiff, Nathanial C. Harris, he was arrested and subsequently indicted on one count of Grand Larceny in the Second Degree in violation of Section 115.40(1) of the Penal Law of the State of New York. Harris was released from custody on an unspecified date and, on October 17, 2008, the charges against Harris were dismissed.
On January 15, 2009, Harris served a notice of claim on the Town Defendants and the County ("the Notice of Claim"). On July 31, 2009, Harris brought a motion in the Supreme Court of the State of New York, Suffolk County to serve an amended and late notice of claim on the Federal Defendants. In a decision dated August 31, 2009, the court denied Harris' motion. See Harris v. Town of Islip Housing Authority, Index. No. 29920-09 (Sup. Ct. Suffolk Cnty. Aug. 31, 2009).
On February 1, 2010, Harris filed a summons and complaint in the Supreme Court of the State of New York, Suffolk County. Although Harris does not clearly articulate his causes of action, construing the complaint liberally and making all inferences in Harris' favor, the Court finds that Harris sets forth claims for false arrest, malicious prosecution, and negligence. Based on these allegations, Harris seeks damages for emotional distress and financial harm he allegedly incurred when he was placed on unpaid suspension from his employment during the pendency of the criminal proceedings. On February 25, 2010, HUD removed the case to this Court.
On August 9, 2011, the Town Defendants filed a motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Harris' claims against them as time-barred by the statute of limitations.
On November 14, 2011, the Court issued an order granting a motion by the Town Defendants to dismiss the false arrest and malicious prosecution claims against them as time-barred. See Harris v. Town of Islip Housing Authority ("Harris I"), No. 10-CV-843, 2011 WL 5822248 (E.D.N.Y. Nov. 14, 2011). In particular, the Court held that the applicable statute of limitations period for false arrest and malicious prosecution claims against a housing authority and its employees was governed generally by the one year statute of limitations in N.Y. CPLR 215(3). However, a that a provision in Housing Law § 157(1) provided an additional thirty day tolling period to only those claims directly asserted against the Housing Authority.
For the purposes of the motion, the Court held that the accrual date for the Plaintiff's intentional tort causes of action was October 17, 2008-the date the charges against the Plaintiff were dismissed-although the Court noted that the false arrest accrual date-the date that his confinement terminated-was in all likelihood substantially earlier than October 17, 2008. See Harris I, 2011 WL 5822248, at *4. In addition, the Court held that the limitations period was not tolled during the pendency of the Plaintiff's motion to file an amended and late notice of claim on the Federal Defendants. See id., at * 3. Thus, applying the one year statute of limitations period as against Richard Albanese, and the one year and thirty day limitations period as against the Housing Authority, the Court held that the false arrest and malicious prosecution claims against the Town Defendants were time-barred and dismissed them with prejudice. Id., at *4.
With respect to the Plaintiff's negligence claims, the Town Defendants sought the dismissal of the negligence cause of action on the ground that the Plaintiff did not file a notice of claim against them with respect to the negligence allegation. The Plaintiff did not address this contention, and the Court did not have a copy of the notice of claim to verify this representation. Therefore, the Court denied the Town Defendant's motion to dismiss the negligence claim without prejudice and afforded the Plaintiff twenty days from the date of the order to either: (1) voluntarily dismiss the ...