It is widely known that a plaintiff must serve a notice of claim upon a municipality in New York state within 90 days of an incident in order to preserve the right to later file a lawsuit against the municipality arising out of that incident. General Municipal Law (GML) §50-e(1).

With respect to the claims of false arrest and malicious prosecution, however, confusion arises because both claims often originate out of the same occurrence, false arrest being the more damaging of the two in terms of reputation and repercussion. However, the critical fact is they are two separate and distinct causes of action, and accordingly, they have different elements and notably different deadlines for filing a notice of claim. The false arrest deadline is often not met for a variety of reasons.

It is not uncommon that, after an arrest and the beginnings of a criminal case, referral of defendants to counsel for filing of a notice of claim for false arrest, or an actual civil action for false arrest, does not happen. It is understandable why a prospective false arrest plaintiff would not seek the aid of a civil attorney to initiate an immediate lawsuit against the police.

With criminal charges pending, a defendant is often fearful that the criminal proceedings would be adversely affected by the commencement of a civil suit. Most importantly, and especially when faced with serious felony charges, a criminal defendant is typically more concerned with the immediate legal battle for freedom than with suing the municipality for false arrest, or at least filing a notice of claim. However, as reasonable as these points may sound, and as will be discussed below, these are not recognized excuses under the law.

Furthermore, the initial response of defense counsel may be such that the advisability of filing a notice of claim to preserve an action for false arrest falls by the wayside. Despite claims of innocence by the criminal defendant, there may be the suspicion that “If you were arrested, then you probably did something wrong,” or the belief that “Why would the police do that if there had been no wrongdoing.” The law of averages supports these positions.

However, a balance of suspended disbelief and skepticism are best employed during the initial meeting. The criminal defense attorney looking to act in the best interest of a potential victim of false arrest must act swiftly to file a claim of false arrest, or to refer the matter to other counsel who can do so in a timely matter. Failing to act immediately may forever prejudice the rights of the individual involved.

Filing a Late Notice of Claim

The general rule requires the filing of a notice of claim for false arrest within 90 days from the release of the wrongful confinement.

However, the time to file a notice of claim for malicious prosecution accrues after the criminal charges have been dismissed, which can be many months or even years in coming. Clearly, then, either confusing false arrest and malicious prosecution or otherwise failing to timely file a notice of claim for false arrest can lead to a fairly lengthy delay.

And yet, as noted above, as reasonable as some of the reasons for failure to file a timely notice of claim may be, these are not recognized excuses under the law. In Perez v. Empire Bus Company, 13 Misc.3d 535 (Sup. Ct. Bronx Cty. Aug. 15, 2006), for example, the plaintiff intentionally failed to file a notice of claim for false arrest until after the criminal charges were dismissed. He did so for strategic reasons on the advice of counsel. The court held that intentionally withholding a notice of claim on the advice of criminal counsel was not “reasonable.”

Time is of the essence. A motion must be promptly made to file a late notice of claim. However, the motion for permission to file a late notice can only be entertained if it is made within the statute of limitations for the false arrest: one year and 90 days from the date of release from custody.

If the criminal charges are dismissed more than one year and 90 days from an individual’s release from custody, and no notice of claim or motion to file a late notice has been made up until then, the individual is forever barred from asserting this cause of action. He or she may proceed with other causes of action timely commenced, such as malicious prosecution and constitutional violations under 42 U.S.C. §1983. However, the most compelling claim, being wrongfully confined to a jail cell, cannot be asserted.

Standards for Decision on Motion

The court hearing the motion, pursuant to GML 50(e), has discretion to grant permission to file a late notice of claim if the plaintiff can show that:

• there was a reasonable excuse for failing to timely file;

• the municipality obtained actual notice of the legal theory and facts of the claim sometime during the 90 day period after the alleged false arrest; and

• the delay would not substantially prejudice the municipality in maintaining a defense on the merits. Acosta v. City of New York, 39 A.D.3d 629 (2d Dept. 2007).

No one factor is determinative and the court will look at the “totality of the circumstances.” Perez v. Empire Bus Company, supra, at 542. “Absence of an acceptable excuse for delay is not necessarily fatal to petitioner’s motion; all relevant factors should be considered on an application to file a late notice of claim” Justiniano v. New York City Housing Authority Police, 191 A.D.2d 252 (1st Dept. 1993).

That being said, the factor that seems to be the most persuasive to the courts is whether the municipality received “actual notice” of the incident. It seems that if the municipality receives actual notice it cannot, in good faith, claim prejudice in defending the claim.

GML 50(e) gives wide discretion to the trial court to grant an application for a late notice of claim. Accordingly, what has constituted “actual notice of the incident” of a false arrest is a viscous concept and has been interpreted in varying ways. Ragland v. New York City Housing Authority, 201 A.D.2d 7 (2d Dept. 1994), is often quoted for the proposition that when “members of the municipality’s police department participate in the acts giving rise to the claim, and reports and complaints have been filed by the police, the municipality will be held to have actual notice of the essential facts of the claim.”

The Second Department, on Oct. 20, 2009, cited and followed Ragland in Erichson v. City of Poughkeepsie, 66 A.D.3d 820 (2d Dept. 2009). The trial court had denied plaintiff’s application to file a late notice of claim for an assault and false arrest committed by the police; the notice of claim was six days late. The Second Department specifically referenced Ragland and reversed the lower court’s decision, holding that the “City of Poughkeepsie police department had actual knowledge of the facts underlying the plaintiff’s claim, as its own employees engaged in the conduct which gave rise to the claim.” Erichson, supra, at 821.

Knowledge and Other Factors

However, upon close examination, Ragland may not be as simple or as helpful to the tardy plaintiff as it appears. As one court noted: “Ragland and the cases relied upon by the Ragland Court all have facts which provided the Court with the other factors (in addition to the imputed knowledge of the arresting officers) to grant the petition allowing the filing of a late Notice of Claim.” Black v. City of New York, 21 Misc.3d 1121(A) (Sup. Ct. N.Y. Cty. Oct. 27, 2008).

For example, in Tatum v. City of New York, 161 A.D.2d 580 (2d Dept. 1990), the plaintiff had been arrested for serious crimes including attempted murder. The district attorney’s office investigated the matter, declined to present the case to the grand jury and eventually dismissed this matter.

In granting the plaintiff’s application to file a late notice of claim, the Second Department held that “knowledge from police arrest records and District Attorney investigation may under some circumstances be imputed to a municipality…in this case, the police arrest report and the District Attorney’s investigation resulting in the adjournment in contemplation of dismissal…may be considered actual or constructive knowledge to the City. Moreover, any delay involved was short” Id at 581.

In Charles v. City of New York, 20 Misc.3d 1133 (Sup. Ct. Kings Cty. Aug. 13, 2008), on the other hand, the court held that medical records maintained by the city in regards to injuries received by plaintiff as a result of a police assault/false arrest matter did not provide the “other factor.” Similarly, in Black v. City of New York, supra, the court held that a complaint made by plaintiff to a Civilian Complaint Review Board did not provide the “other factor” because the board is not a city entity. In Furr v. City of New York, 22 Misc.3d 1120(A) (Sup. Ct. Kings Cty. Feb. 6, 2009), the court held that bald allegations that the arresting officers were under investigation by the district attorney’s office was not enough to support actual notice.

However, in a case in which the authors represented the plaintiffs, a complaint made to the Internal Affairs Bureau within the 90-day period was held sufficient to prove actual notice to the city. Figueroa v. City of New York, 22 Misc.3d 1111 (Sup. Ct. Kings Cty. Jan. 15, 2009).

And, of course, in Erichson v. City of Poughkeepsie, supra, the Second Department specifically noted that the delay in filing the notice of claim was six days. This is consistent with its previous decision in Tatum v. City of New York, supra. The “short delay” may not be the “other factor” that provides actual notice to the municipality, but it has clearly been considered a “factor” employed to grant this discretionary extension of time.

In an ideal world, a prospective false arrest plaintiff would serve a notice of claim within 90 days of her release from custody. However, as the case law indicates, often victims of false arrest do not contact an attorney until after the expiration of the statutory period.

Ultimately, the burden rests on the attorney to move the court for permission to file a late notice of claim and not simply rely on the theory that because the police prepared paperwork, the municipality will be held to have been provided the requisite actual notice of the incident.

The moving attorney must present all facts weighing in the client’s favor in the application to the court. Thoroughness and a skillful use of the existing facts may affect whether your client ever receives a just day in court.

Joseph S. Bavaro is a partner, and Carolyn Caccese is an associate, at Salenger, Sack, Schwartz & Kimmel. Mr. Bavaro represented the plaintiffs in the “Figueroa v. City of New York” case mentioned in this article.