Bradley M. Wanner and Andrew J. Orenstein ()
In a recent unanimous decision, the Appellate Division, Second Department, overturned the dismissal of a lawsuit against three police officers who were not named in the Notices of Claim. The decision in Blake v. City of New York, 148 A.D.3d 1101 (2d Dept. 2017), overruled prior cases in the Second Department and came just 15 months after the First Department reached the opposite conclusion in Alvarez v. City of New York, 134 A.D.3d 599 (1st Dept. 2015). With this department split, it will only be a matter of time before the Court of Appeals is asked whether claimants are required to name individual municipal employees in their Notices of Claim.
Blake stems from the arrest and indictment of the plaintiffs for their alleged involvement in an October 2008 shooting in Queens. After approximately 16 months in jail awaiting trial, a police informant who had positively identified the plaintiffs in two photo arrays recanted his identification and the charges were dismissed. The plaintiffs then filed lawsuits against, inter alia, the City of New York and five individual police officers for false arrest, malicious prosecution, and civil rights violations. Three of the named police officers, who were not identified in the Notices of Claim, moved for dismissal since they were not named in the Notices of Claim. Supreme Court granted dismissal on this basis and the plaintiffs appealed.
The Second Department held that the three police officers were not entitled to dismissal of the false arrest and malicious prosecution claims. The court began its analysis by acknowledging a split in the decisional law, noting that the First Department requires a municipal employee to be named in the Notice of Claim, see Alvarez, 134 A.D.3d 599; Tannenbaum v. City of New York, 30 A.D.3d 357 (1st Dept. 2006), whereas the Third and Fourth Departments do not. See Pierce v. Hickey, 129 A.D.3d 1287 (3d Dept. 2015); Goodwin v. Pretorius, 105 A.D.3d 207 (4th Dept. 2013).
Adopting the rationale of the Third and Fourth Departments, the Blake court adhered to a narrow interpretation of the statutory language of General Municipal Law §50-e(2), requiring the Notice of Claim to (1) be in a sworn writing; (2) provide the address of the claimant and his attorney; (3) set forth the nature of the claim, the time, place, and manner in which the claim arose; and (4) itemize the claimant’s injuries and damages. The court held that it would not impose a requirement on claimants that is not specifically enumerated in the GML. In contrast to the First Department, the court characterized the purpose of the Notice of Claim as being solely to “notify the municipality, not the individual defendants” of a potential claim. See Blake, supra (citing Zwecker v. Clinch, 279 A.D.2d 572 (2d Dept. 2001).
The court also relied upon Scott v. City of New Rochelle, 44 Misc.3d 366 (Sup. Ct. 2014), which adopted the Fourth Department’s reasoning, distinguishing the Second Department’s decision in Matter of Rattner v. Planning Commission of the Village of Pleasantville, 156 A.D.2d 521 (2d Dept. 1989), because the issue was whether a Notice of Claim was required at all, not whether individual employees were required to be named therein. See Scott, supra. The court went on to approve the notion that the Notice of Claim is merely a vehicle by which to give a municipality an opportunity to investigate the facts and merits of a claim. See id.
Further, the Scott court noted that there was a possibility the claimant would be unable to identify the employee within the 90-day period to file a Notice of Claim. See id. The court found the Notice of Claim contained “all the relevant information” the municipality required for the opportunity to conduct a thorough investigation, which made the identity of the individual officers “readily accessible” to the municipality in a “straightforward inquiry” combined with the information in the police department’s “event report.” See id. According to the court, the municipality, with access to this information, was in the “best position to investigate and identify” the individual officers. See id.
The Blake decision overrules at least two pre-Scott decisions from the Second Department that held a claimant was required to name a municipal employee in the Notice of Claim to maintain a lawsuit against that individual. In both Santoro v. Town of Smithtown, 40 A.D.3d 736 (2d Dept. 2007), and Gabriel v. City of New York, 89 A.D.3d 982 (2d Dept. 2011), the Second Department upheld the dismissal of lawsuits brought against individual employees who were not named in the Notices of Claim in either their official or individual capacities.
Blake also appears to be in conflict with several post-Rattner decisions holding the Notice of Claim requirements applied to claims brought against individual employees only in their official capacities. For example, in Zwecker, the Second Department upheld dismissal of the complaint against the individually named defendants because the plaintiff did not offer any evidence demonstrating they were acting outside the scope of their employment. In Smith v. Scott, 294 A.D.2d 11 (2d Dept. 2002), the court reached the same conclusion, rejecting the plaintiff’s argument that he was not required to file a Notice of Claim because he sued only the municipal employees.
If Notices of Claim are truly intended to apprise municipalities of the facts and nature of claims, claimants should be required to disclose as much as possible about the who just as they are required to disclose what is known about the what, when, and where of alleged claims. To not require a claimant to identify the municipal employees who were involved in the incident that gave rise to the claim assumes that a municipality will be able to identify its employees involved in a particular claim from the other information in the Notice of Claim. While in some instances this information may be sufficient, it is conceivable that, without this information, a municipality will not be able to conduct an adequate investigation to identify which, of its hundreds or thousands of employees, was involved in a particular incident.
The identity of the municipal employees involved in a particular claim is intertwined with the facts surrounding a claim. A false arrest claim requires the involvement of a police officer; a claim of medical malpractice may involve an emergency medical technician, a nurse, or a doctor; a claim arising out of a motor vehicle accident requires the involvement of an employee driving a municipal vehicle. It is not feasible to separate the municipal employee from such claims and treat the claim and employee as separate and distinct, or to require information about the facts of a claim without some identification of the employee involved.
Finally, in the class of claims brought against a municipality that implicate individual employees, the majority involve interactions between citizens and police officers. The approach taken in Scott, and implicitly adopted in Blake, overlooks the fact that, in some cases, the municipality may be in a worse position than the claimant to investigate a claim. Since a claim for false arrest or malicious prosecution is based on an individual not being convicted of some criminal conduct, the documents that would allow the municipality to identify the police officers involved would be sealed and unavailable to the municipality until it receives permission from the claimant to obtain those records (typically only after a lawsuit has been filed). The claimant, however, does not face the same restrictions on access to relevant paperwork—and would be in the better position to identify the individual police officers.
Just over one year ago, the First Department’s decision in Alvarez revealed a widening split between the appellate divisions. With the Second Department’s Blake decision, it seems that the issue of whether individual municipal employees must be named in a Notice of Claim is again at the forefront and needs to be addressed by the Court of Appeals. It does not appear that, absent a decision from the Court of Appeals, the difference in outcomes will be resolved. How the court would decide this issue remains unclear.