The following papers, numbered 1-5 were considered on this motion to serve a late notice of claim:
Notice of Motion/Order to Show Cause, - Affidavits - Exhibits.........1, 2, 3, 4
Answering Affidavits - Exhibits ................5
Replying Affidavits _ _
Cross-Motion: [ ] Yes [ X ] No
Upon the foregoing papers, it is ordered that this motion is decided as set forth below.
Petitioner seeks to commence an action against the City of New York (City) and the New York City Police Department (NYPD), as well as the other respondents, for false arrest and malicious prosecution. His claims are based upon his arrest on July 6, 2011, for forcible touching and sexual abuse. Petitioner was taken to a police precinct, photographed, and fingerprinted. Petitioner was given a desk appearance ticket and ordered to appear in court on August 9, 2011. On February 28, 2012, the charges against petitioner were dismissed, by Decision & Order of Honorable Diana M. Boyar.
Petitioner brought the instant application to serve a late notice of claim, by Notice of Petition and Verified Petition, on or about October 2, 2012.
At the outset, this Court notes that petitioner seeks to serve a late notice of claim against the NYPD, an agency of the City. See New York City Administrative Code § 12-303(d); New York City Charter § 431. Pursuant to New York City Charter § 396, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." Thus, the petition is denied as against the NYPD.
Under General Municipal Law (GML) § 50-e(l)(a), service of a notice of claim must occur within 90 days after the claim arises. The accrual date for a claim of malicious prosecution accrues on the date that the criminal charges are dismissed, in this case on February 28, 2012. See Grullon v City of New York, 222 A.D.2d 257, 258 (1st Dep't 1995). Here, petitioner has failed to serve a notice of claim and, thus, it is untimely. Moreover, the accrual date for the claim of false arrest begins on the day that an inmate is released from prison. See Nunez v City of New York, 307 A.D.2d 218, 219 (1st Dep't 2003). Petitioner does not identify the date he was released from custody. Nevertheless, since petitioner was issued a desk appearance ticket, ...