Hernandez v City of New York 2011 NY Slip Op 30917(U) April 11, 2011 Supreme Court, New York County Docket Number: /2009 Judge: Saliann

Similar documents
Brown v City of New York 2017 NY Slip Op 30393(U) January 6, 2017 Supreme Court, Bronx County Docket Number: /13 Judge: Elizabeth A.

Bostic v City of New York 2019 NY Slip Op 30991(U) April 2, 2019 Supreme Court, New York County Docket Number: /2016 Judge: Verna Saunders

Ugweches v City of New York 2018 NY Slip Op 33155(U) December 3, 2018 Supreme Court, New York County Docket Number: /2016 Judge: Verna Saunders

Wesley v City of New York 2011 NY Slip Op 31592(U) June 10, 2011 Sup Ct, NY County Docket Number: /09 Judge: Barbara Jaffe Republished from New

Koch v Blit 2013 NY Slip Op 30620(U) March 15, 2013 Sup Ct, New York County Docket Number: /11 Judge: Joan A. Madden Republished from New York

Bandow Co., Inc. v Burlington Ins. Co NY Slip Op 31494(U) June 10, 2010 Supreme Court, New York County Docket Number: /09 Judge: Barbara

Grace v Metropolitan Tr. Auth NY Slip Op 33240(U) December 14, 2018 Supreme Court, New York County Docket Number: /2017 Judge: Robert D.

Castro v New York City Police Dept NY Slip Op 33086(U) October 19, 2010 Supreme Court, New York County Docket Number: /08 Judge: Barbara

Hutcherson v City of New York 2018 NY Slip Op 33415(U) November 14, 2018 Supreme Court, Bronx County Docket Number: /2014 Judge: Ruben Franco

Dukuly v Harlem Ctr., LLC 2010 NY Slip Op 32433(U) August 11, 2010 Sup Ct, NY County Docket Number: /08 Judge: Barbara Jaffe Republished from

Parsons v Seneca County Sheriff's Dept NY Slip Op 30819(U) March 30, 2012 Supreme Court, Seneca County Docket Number: Judge: Dennis F.

Badia v City of New York 2011 NY Slip Op 32945(U) October 20, 2011 Sup Ct, NY County Docket Number: /06 Judge: Barbara Jaffe Republished from

Ferguson v City of New York 2010 NY Slip Op 32321(U) August 25, 2010 Supreme Court, New York County Docket Number: /06 Judge: Barbara Jaffe

Matter of Bauer v Board of Mgrs. of the Beekman Regent Condominium 2010 NY Slip Op 31668(U) June 28, 2010 Supreme Court, New York County Docket

Kahan Jewelry Corp. v First Class Trading, L.P NY Slip Op 30039(U) January 4, 2019 Supreme Court, New York County Docket Number: /2018

Scialdone v Stepping Stones Assoc., LP 2014 NY Slip Op 33861(U) November 10, 2014 Supreme Court, Westchester County Docket Number: 12514/11 Judge:

FC Bruckner Assoc., L.P. v Fireman's Fund Ins. Co NY Slip Op 30848(U) April 18, 2013 Supreme Court, New York County Docket Number: /10

Lavan v New York City Dept. of Sanitation 2010 NY Slip Op 33615(U) December 24, 2010 Supreme Court, New York County Docket Number: /10 Judge:

Sarna v City of New York 2011 NY Slip Op 30202(U) January 26, 2011 Sup Ct, New York County Docket Number: /07 Judge: Barbara Jaffe Republished

Rowser v City of New York 2010 NY Slip Op 32628(U) August 20, 2010 Supreme Court, New York County Docket Number: /07 Judge: Barbara Jaffe

Dubinskiy v Davis Realty 2011 NY Slip Op 30206(U) January 27, 2011 Sup Ct, New York County Docket Number: /2006 Judge: Saliann Scarpulla

Matter of Sabba v New York State Dept. of Labor 2011 NY Slip Op 30201(U) January 26, 2011 Sup Ct, New York County Docket Number: /10 Judge:

FILED MAR Cross-Motion: Yes 0 NO. Check one: u FINAL NON-FINAL DISPOSITION. Check if appropriate: 0 DO NOT POST 0 REFERENCE

Onilude v City of New York 2015 NY Slip Op 32176(U) October 8, 2015 Supreme Court, Bronx County Docket Number: /2009 Judge: Wilma Guzman Cases

Garcia v City of New York 2014 NY Slip Op 30364(U) February 10, 2014 Supreme Court, New York County Docket Number: /2010 Judge: Kathryn E.

Matter of DiMattia v City of New York 2018 NY Slip Op 33033(U) October 4, 2018 Supreme Court, Richmond County Docket Number: 85126/2018 Judge: Thomas

Matter of Romanoff v New York State Div. of Hous. & Community Renewal 2011 NY Slip Op 31342(U) May 19, 2011 Supreme Court, New York County Docket

Cramer v Saratoga County Maplewood Manor 2016 NY Slip Op 32712(U) July 21, 2016 Supreme Court, Saratoga County Docket Number: Judge: Robert

Han v New York City Tr. Auth NY Slip Op 33242(U) December 14, 2018 Supreme Court, New York County Docket Number: /2013 Judge: Kathryn E.

Greene v Esplande Venture Partnership 2017 NY Slip Op 32335(U) October 4, 2017 Supreme Court, Kings County Docket Number: /2015 Judge: Richard

Townson v New York City Health & Hosps. Corp NY Slip Op 30942(U) May 19, 2016 Supreme Court, New York County Docket Number: /2016 Judge:

National Union Fire Ins. Co. of Pittsburgh, Pa. v Rucker

McBride v Village of Tuckahoe 2014 NY Slip Op 33026(U) April 4, 2014 Sup Ct, Westchester County Docket Number: 66237/2013 Judge: Francesca E.

Matter of Miller v New York City Hous. Auth NY Slip Op 30564(U) March 5, 2012 Sup Ct, NY County Docket Number: /11 Judge: Saliann

Verizon N.Y., Inc. v Consolidated Edison, Inc NY Slip Op 32094(U) September 6, 2013 Sup Ct, New York County Docket Number: /2006 Judge:

Long Is. Minimally Invasive Surgery, P.C. v Outsource Mktg. Solutions, Inc NY Slip Op 33751(U) March 5, 2012 Supreme Court, Nassau County

Figueiredo v New Palace Painters Supply Co. Inc NY Slip Op 30521(U) January 3, 2005 Supreme Court, Bronx County Docket Number: 8151/2004 Judge:

Lugo v City of New York 2013 NY Slip Op 30267(U) January 29, 2013 Supreme Court, New York County Docket Number: /2010 Judge: Kathryn E.

Rodriquez v City of New York 2015 NY Slip Op 32472(U) December 8, 2015 Supreme Court, Bronx County Docket Number: /2011 Judge: Ben R.

Love v BMW of N. Am., LLC 2017 NY Slip Op 30528(U) February 21, 2017 Supreme Court, Richmond County Docket Number: /16 Judge: Kim Dollard Cases

Demirovic v City of New York 2013 NY Slip Op 33380(U) May 1, 2013 Sup Ct, Queens County Docket Number: 4867/13 Judge: Kevin J. Kerrigan Cases posted

France v New York City Hous. Auth NY Slip Op 30374(U) February 10, 2014 Supreme Court, New York County Docket Number: /12 Judge: Kathryn

Buchelli v City of New York 2010 NY Slip Op 31857(U) July 12, 2010 Supreme Court, New York County Docket Number: /04 Judge: Cynthia S.

400 W. 148th St. Hous. Dev. Fund Corp. v Argyle Dev., LLC 2010 NY Slip Op 33713(U) December 27, 2010 Supreme Court, New York County Docket Number:

Ruda v Lee 2012 NY Slip Op 32855(U) November 26, 2012 Sup Ct, Queens County Docket Number: 21833/2011 Judge: Robert J. McDonald Republished from New

Zen Restoration, Inc. v Hirsch 2017 NY Slip Op 31737(U) August 14, 2017 Supreme Court, New York County Docket Number: /17 Judge: Lynn R.

Reem Contr. v Altschul & Altschul 2016 NY Slip Op 30059(U) January 12, 2016 Supreme Court, New York County Docket Number: /2011 Judge: Kelly

Matter of Miller v Roque 2016 NY Slip Op 30381(U) March 5, 2016 Supreme Court, New York County Docket Number: /15 Judge: Jr., Alexander W.

McNair v J.P. Morgan Chase Bank President 2013 NY Slip Op 31655(U) July 17, 2013 Supreme Court, New York County Docket Number: /2012 Judge:

Watson v Lampkin 2011 NY Slip Op 30050(U) January 6, 2011 Supreme Court, New York County Docket Number: /2008 Judge: Saliann Scarpulla

Barahona v City of New York 2013 NY Slip Op 30232(U) January 28, 2013 Sup Ct, New York County Docket Number: /2010 Judge: Kathryn E.

Strong v City of New York 2012 NY Slip Op 30280(U) February 2, 2012 Sup Ct, NY County Docket Number: /09 Judge: Cynthia S.

Pludeman v Northern Leasing Sys., Inc NY Slip Op 32343(U) August 30, 2010 Sup Ct, NY County Docket Number: /04 Judge: Martin Shulman

Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co NY Slip Op 33786(U) June 16, 2014 Supreme Court, Nassau County Docket Number:

State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C NY Slip Op 30917(U) April 18, 2016 Supreme Court, Queens County Docket Number:

New York City Hous. Auth. v McBride 2018 NY Slip Op 32390(U) September 21, 2018 Supreme Court, New York County Docket Number: /2018 Judge:

Rivas v City of New York 2019 NY Slip Op 30318(U) February 7, 2019 Supreme Court, New York County Docket Number: /2017 Judge: Alexander M.

Perez v Bellevue Hosp NY Slip Op 33411(U) December 24, 2018 Supreme Court, New York County Docket Number: /17 Judge: Shlomo S.

Paiba v FJC Sec., Inc NY Slip Op 30384(U) February 27, 2015 Supreme Court, Bronx County Docket Number: /2012 Judge: Mary Ann Brigantti

Pratt v 32 W. 22nd St., LLC 2017 NY Slip Op 31866(U) August 23, 2017 Supreme Court, New York County Docket Number: /2016 Judge: Kathryn E.

Tenesela v New York City Taxi & Limousine Commn NY Slip Op 33355(U) December 2, 2010 Supreme Court, New York County Docket Number: /10

Matter of Kastle v Town of Kent 2012 NY Slip Op 32964(U) December 11, 2012 Sup Ct, Putnam County Docket Number: Judge: Lewis Jay Lubell

Matter of Thill v North Shore Cent. Sch. Dist NY Slip Op 34079(U) November 19, 2013 Supreme Court, Nassau County Docket Number: /13

Sanchez v City of New York 2017 NY Slip Op 32185(U) September 13, 2017 Supreme Court, Bronx County Docket Number: /2014 Judge: Julia I.

Verizon New York, Inc. v ELQ Indus., Inc NY Slip Op 30008(U) January 2, 2013 Sup Ct, New York County Docket Number: /07 Judge: Saliann

Dupiton v New York City Tr. Auth NY Slip Op 33234(U) November 26, 2018 Supreme Court, Queens County Docket Number: /2016 Judge: Ernest F.

Hanna v City of New York 2016 NY Slip Op 31082(U) March 23, 2016 Supreme Court, New York County Docket Number: /14 Judge: James E.

Vitale v Meiselman 2013 NY Slip Op 30910(U) April 25, 2013 Sup Ct, New York County Docket Number: /12 Judge: Eileen A. Rakower Republished from

The Wallack Firm, P.C. v Nacos 2013 NY Slip Op 30161(U) January 14, 2013 Supreme Court, New York County Docket Number: /2012 Judge: Joan A.

Beckles v City of New York 2012 NY Slip Op 32864(U) November 7, 2012 Sup Ct, New York County Docket Number: /11 Judge: Geoffrey D.

Maggio v Town of Hempstead 2015 NY Slip Op 32647(U) June 1, 2015 Supreme Court, New York County Docket Number: Judge: James P.

Basilio v Carlo Lizza & Sons Paving, Inc NY Slip Op 31211(U) June 14, 2018 Supreme Court, New York County Docket Number: /2017 Judge:

JDF Realty, Inc. v Sartiano 2010 NY Slip Op 32080(U) July 29, 2010 Supreme Court, New York County Docket Number: /2009 Judge: Saliann Scarpulla

Zaremby v Takashimaya N.Y., LLC 2010 NY Slip Op 33938(U) August 13, 2010 Sup Ct, New York County Docket Number: /08 Judge: Louis B.

Cohen v Kachroo 2013 NY Slip Op 30416(U) February 22, 2013 Supreme Court, New York County Docket Number: /10 Judge: Eileen A.

Harper v City of New York 2014 NY Slip Op 32618(U) September 30, 2014 Sup Ct, Kings County Docket Number: Judge: Dawn M.

T. Reagan Trucking, Inc. v Creer Design Group, Inc NY Slip Op 30598(U) March 19, 2010 Supreme Court, New York County Docket Number: /09

Hernandez v Extell Dev. Co NY Slip Op 30420(U) March 2, 2017 Supreme Court, New York County Docket Number: /2012 Judge: Cynthia S.

Nagi v Mario Broadway Deli Grocery Corp NY Slip Op 31352(U) June 29, 2016 Supreme Court, Bronx County Docket Number: /13 Judge: Elizabeth

Strougo & Blum v Zalman & Schnurman

Matter of Harris v Uhler 2016 NY Slip Op 30973(U) May 13, 2016 Supreme Court, Franklin County Docket Number: Judge: S. Peter Feldstein Cases

Seleman v Barnes & Noble, Inc NY Slip Op 30319(U) February 11, 2013 Supreme Court, New York County Docket Number: /2011 Judge: Saliann

Brown v City of New York 2010 NY Slip Op 32344(U) August 20, 2010 Sup Ct, NY County Docket Number: /10 Judge: Barbara Jaffe Republished from

Mack v City of New York 2014 NY Slip Op 32949(U) October 28, 2014 Supreme Court, Queens County Docket Number: /13 Judge: Phyllis Orlikoff Flug

Kowlessar v Darkwah 2017 NY Slip Op 32348(U) June 19, 2017 Supreme Court, Queens County Docket Number: /2016 Judge: Robert J.

Mastroianni v Battery Park City Auth NY Slip Op 30031(U) January 4, 2019 Supreme Court, New York County Docket Number: /2013 Judge:

Patino v Drexler 2013 NY Slip Op 30693(U) April 9, 2013 Sup Ct, New York County Docket Number: /2011 Judge: Saliann Scarpulla Republished from

Bell v New York City Hous. Auth NY Slip Op 31933(U) October 15, 2015 Supreme Court, New York County Docket Number: /13 Judge: Cynthia S.

Poventud v New York City Dept. of Educ NY Slip Op 32881(U) December 4, 2009 Supreme Court, New York County Docket Number: /08 Judge:

Larkin v City of New York 2013 NY Slip Op 31534(U) July 9, 2013 Sup Ct, New York County Docket Number: /09 Judge: Joan A. Madden Republished

Fruchtman v Tishman Speyer Props NY Slip Op 30468(U) February 28, 2012 Sup Ct, NY County Docket Number: /10 Judge: Joan M.

Pavasaris v Incorporated Vil. of Saltaire 2016 NY Slip Op 31864(U) July 25, 2016 Supreme Court, Suffolk County Docket Number: Judge: Peter

Spallone v Spallone 2014 NY Slip Op 32412(U) September 11, 2014 Sup Ct, NY County Docket Number: /2013 Judge: Eileen A. Rakower Cases posted

Adeli v Ballon Stoll Bader & Nadler, P.C NY Slip Op 32993(U) November 22, 2013 Sup Ct, NY County Docket Number: /12 Judge: Saliann

Matter of Williams v New York City Transit 2014 NY Slip Op 31667(U) June 25, 2014 Sup Ct, New York County Docket Number: /2013 Judge: Michael

Port Auth. of N.Y. & N.J. v New Generation Transp NY Slip Op 30037(U) January 4, 2019 Supreme Court, New York County Docket Number: /2016

Broadley v Matros 2018 NY Slip Op 33032(U) November 26, 2018 Supreme Court, New York County Docket Number: /14 Judge: Joan A.

Matter of Wear v Forex Capital Mkts. LLC 2011 NY Slip Op 30389(U) February 17, 2011 Sup Ct, New York County Docket Number: /2010 Judge: Saliann

Scelzo v Acklinis Realty Holding LLC 2011 NY Slip Op 34054(U) December 7, 2011 Sup Ct, Bronx County Docket Number: 7654/07 Judge: Robert E.

Piedra v New York State Dept. of Corrections & Community Supervision 2014 NY Slip Op 30040(U) January 7, 2014 Supreme Court, New York County Docket

Transcription:

Hernandez v City of New York 2011 NY Slip Op 30917(U) April 11, 2011 Supreme Court, New York County Docket Number: 104935/2009 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1] ANNED 0N411312011 I. SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY '7 SALIANN SCARPULM PRESENT: - PART Index Number : 10493512009 HERNANDEZ, RUSSELL VS. CITY OF NEW YORK SEQUENCE NUMBER : 002 REARGUMENT/RECONSIDERATlON I..,.I- * Notlce of Motlonl Order to Show Cause - Affidavits - Exhlblts... Answering Affidavlta - Exhibits - - INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION GAL. NO. n this motion tolfor I PAPERS NUMBW3W I W Dated: Check one: FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: n DO NOT POST REFERENCE

[* 2] -against- Index Number 104935/2009 Submission Date 12/8/20 1 1 Mot. Seq. No. 002 DECISION, ORDER AND JUDGMENT THE CITY OF NEW YORK, "JOHN DOE" and "JANE DOE," the names of the last defendants being fictitious, the true names of the defendants being unknown to the plaintiff( s), -against- THE CITY OF NEW YORK, "JOHN DOE" and DOE," the names of the last defendants being fictitiom the true names of the defendants being unknown to t m plaintiff( s) q41m- OC -------- - Appearances: For Plaintiff: For Defendant the City: By Ugo Uzoh, P.C. By Ugochukwu Uzoh, Esq. 255 Livingston Street, 4'h Floor Brooklyn, New York 11217 New York City Corporation Counsel By Anthony Bila, Esq. 100 Church Street, 4'h Floor New York, New York I0007 7 18-874-6045 212-788-1411

[* 3] HON SALIANN SCARF ULLA, J.: In Index No. 104935 2009, plaintiff Russell Hernandez ( Hernandez ) moves to reargue or renew this Court s June 3, 2009 denial of leave to file late notice of claim on defendant the City of New York ( (the City ). On April 15, 2009, Hernandez petitioned this Court for leave to file a notice of claim against the City, asserting claims of violation of civil and due process rights, U.S. Constitution, unlawfuvfalse arrest, unlawfullfalse imprisonment, excessive use of force, assault and battery, illegal and unreasonable search and seizure, cruel and unusual punishment, conspiracy, intentional infliction of emotional distress, and negligent hiring and retention of employment services. In the original application, Hernandez alleged only that the City held him in custody for two years, from March 23,2006 until May 15,2008, issuing at the end of confinement only a certification of incarceration bearing NYSID 55301 OOK. The Court denied the original application without prejudice, because of Hernandez s omission of proof necessary to determine the facts underlying his claims, and to assess whether the state tort causes of action are timely under the applicable statute of limitations, whether Hernandez was mentally or physically incapacitated, whether the municipality acquired knowledge of the essential facts regarding the cause of action within ninety days of accrual or shortly thereafter, and whether the municipality would be substantially prejudiced if the motion were to be granted. See Nunez v City of New York, 307 A.D.2d 218,220 (1 Dep t 2003). 2

[* 4] On the motion to reargue or renew, Hernandez attests that the City removed him from the custody of the United States Citizenship and Immigration Services ( U.S.C.I.S. ) at the behest of the Bronx District Attorney s Office on March 23,2006, held him for two years at one of the institutions managed by the City s Department of Corrections without any hearing before a judge and then summarily placed him back in U.S.C.I.S. custody on May 15, 2008. As a result of his removal by the City s Department of Corrections, Hernandez s family was unable to post bail set by U.S.C.I.S. at $6,500.00, and it was not until the Department of Corrections returned Hernandez to U.S.C.I.S. that he was able to post bail and be released, pending his immigration hearing. Hernandez submits an affidavit of merit explaining that he did not timely file a notice of claim because he was emotionally traumatized by his allegedly unlawful incarceration. Hernandez now attaches the documents he received from U.S.C.1.S after his original petition was denied. Exhibits 1 through 5 contain documents indicating that Hernandez was being held at an Immigration Detention Center pending the conclusion of a deportation proceeding against him. A federal immigration judge imposed a bail of $6,500.00 as condition of Hernandez s release, but Hernandez was not released, because he was transferred to Rikers Island. By order dated June 15,2006, U.S.C.I.S. closed its proceeding as a result of other custody (witness, N.Y.C). Hernandez also submits an order of the Supreme Court, Bronx County, dated March 14,2006, which authorized the City to take Hernandez into custody and hold him 3

[* 5] at Rikers Island to ensure his presence as a witness at an indictment hearing in Bronx County Supreme Court until such time that his witness testimony was no longer required. Hernandez attests that he was never brought to testify in any proceeding and never appeared in court. Hernandez infers from the March 14,2006 order that the requested testimony related to a car hijacking in which he himself was a victim. The City cross-moves to dismiss Hernandez s complaint that was filed under Index No. 104935/2009 with this special proceeding. Hernandez also separately filed an identical complaint in a plenary action under Index No. 111100/2009, which is currently pending before Justice Barbara Jaffe in the City Part of Supreme Court, New York County. In Index No. 111100/2009, the City moves to dismiss the complaint under CPLR 3211 (a)(4), arguing that this special proceeding is identical to the related plenary action. Hernandez cross-moves primarily to join the plenary action with the special proceeding and permit Hernandez to amend the complaint to join additional parties to the plenary action. These respective motions are consolidated herein for disposition, Discussion A motion to reargue is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. See Opton Handler Gottlieb Feiler Landau & Hirsch v. Patel, 203 A.D.2d 72 (1 Dept. 1994). A motion to renew is designed to afford a party an opportunity to present new facts not offered on the prior motion that would change the 4

[* 6] prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. CPLR 222 l(e); see also Henry v Peguero, 72 A.D.3d 600, 602 ( lst Dep t 2010). To prevail on a motion to renew, the movant must show that the proof being offered has been only recently discovered, and the movant is acting promptly. Id. Because Hernandez admittedly does not argue that the Court misconstrued any facts or law presented on his prior application, the Court denies the part of the motion in which Hernandez seeks reargument. As to renewal, the Court now reviews whether the newly offered proof warrants grant of leave to file a late notice of claim. Pursuant to General Municipal Law ( Gen. Mun. Law ) 5 50-e( l), in an action against a municipality seeking to recover damages for personal injury or property damages, claimant must serve a notice of claim against the municipality within ninety days after the claim arises, Nunez v. City of New York, 307 A.D.2d 21 8,219 ( lst Dep t 2003). A timely notice of claim is required to proceed against a municipality, and cannot be waived. Kroin v. City oflyew Yurk, 210 A.D.2d 95,96 ( lgt Dep t 1994) (municipality may not waive requirements as to matter OF time of service of notice of claim), An untimely notice of claim, served without leave of court, is a nullity. Wollins v. New York City Board of Education, 8 A.D.3d 30 (1 Dep t 2004). [A] court may grant the claimant leave to file a late notice of claim within one year and 90 days of accrual. 5

[* 7] Nunez, 307 A.D. 2d at 219 (citing Gen. Mun. Law $50-e(5); Pierson v. City oflvew York, - 56 N.Y.2d 950 (1982)).?&%en exercising its discretion to grant leave to file a late notice of claim, the Court must consider (a) whether the application was brought within the time which the action could have been commenced against the municipality; (b) whether the municipality acquired actual knowledge of the essential facts constituting the causes of action within 90 days of their accrual or within a reasonable time thereafter, (c) whether the petitioner failure to timely serve the notice of claim is excusable and (d) whether the delay in serving the notice of claim substantially prejudiced the municipality in maintaining its defense on the merits. See Ragland v New York City Hous. Auth., 201 A.D.2d 7, 10 (2 d Dep t 1994). Here, while Hernandez s original notice of claim was not timely, Hernandez did commence this special proceeding on April 15,2009, within the one-year-and-ninety-day outside limit for moving to extend his time to file a notice of claim. The statute of limitations had not expired on Hernandez s claims of false arrest and imprisonment, as they accrued on May 15,2008, when the Department of Corrections removed Hernandez back to the custody of U.S.C.I.S., and thus this application was made within a year and ninety days of Hernandez s release. Nunez, 307 A.D.2d at 219; Roche v. Village of Tarrytown, 309 A.D.2d 842, 843 (2d Dep t 2003). Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 9 (2d Dep t 1994). With respect to Hernandez s federal claims, a 6

[* 8] notice of claim is unnecessary for claims premised on 42 U.S.C. $1983, as [tlhe notice of claim requirements of General Municipal Law $50-e do not apply to Federal civil rights claims brought pursuant to 42 USC $1983. Zwecker v. Clinch, 279 A.D.2d 572, 574 (2d Dep t 2001). With additional submissions, Hernandez remedied some of the past defects in his application. The documents from U.S.C.I.S. and a personal affidavit of merit indicate that Hernandez s incarceration at Rikers Island precluded him from posting bail and being released from federal detainment. Considering that Hernandez was held at Rikers Island for two years, without ever being charged with any crime, ostensibly being held as a material witness for a case in which he never even testified, and the emotional toll the two-year unexplained confinement took on the Court deems his delay in filing a notice of claim excusable. The City will not be substantially or unfairly prejudiced by the late notice of claim, because the City had actual knowledge of all the pertinent facts giving rise to the claims of unlawful arrest and imprisonment: it was the Department of Corrections, a city agency, that held Hernandez in physical custody. See Ragland, 201 A.D.2d at 11 (concluding that I The Court construes the cause of action for violation of civil and due process rights, U.S. Constitution and NY [sic] Constitution... Illegal and Unreasonable Search and Seizure, Cruel and Unusual Punishment, included in the proposed notice of claim, to be asserted under 42 USCS 9 1983. 2 In support of his petition Petitioner submits an unverified and undated letter by Dana Ashley, MSW, of the Albert Einstein College of Medicine of Yeshiva University, discussing his poor psychological condition after the car hijacking. 7

[* 9] when-the affirmative acts of municipal employees and agents give rise to an alleged cause of action, actual knowledge is presumed); see also Matter of Schiffmun v City of New York, 19 A.D.3d 206,207 (lst Dep't 2005); Goodall v City ofnew York, 179 A.D.2d 481, 481 (1" Dep't 1992); Tuturn v City ofnew York, 161 A.D.2d 580, 581 (2nd Dep't 1990); McKenna v City ofnew York, 154 A.D.2d 655,661 (2nd Dep't 1989). Under these circumstances, the Court grants leave to renew Hernandez's prior petition to file a late notice of claim to include, among state law causes of action, only unlawfwfalse arrest, unlawful/faise imprisonment and negligent hiring and retention of employment services. However, without specific allegations as to when and what actions by the City gave rise to Hernandez's claims of assault and battery, excessive use of force, conspiracy and intentional infliction of emotional distress, and the timing of such actions, Hernandez has not shown that these claims are timely under the relevant statute of limitations. Moreover, New York does not recognize a civil cause of action for conspiracy. Accordingly, upon renewal the Court denies Hernandez's motion to file a late notice of claim as to the assault, battery, excessive use of force, conspiracy and intentional infliction of emotional distress claims. With respect to the City's cross-motion to dismiss Hernandez's complaint for failure to state a claim, on this renewal motion the Court will not address the merits of the claims Hernandez is permitted to assert in the notice of claim. The complaint Hernandez filed with this special proceeding is a nullity because its filing is not supported by CPLR 8

[* 10] and was done without leave of court. Further, on petition for leave to file late notice of claim, the Court does not rule on the ultimate merits of claims that petitioner intends to file. See Metzger v Town of Warwick, 294 A.D.2d 503, 504 (2nd Dep t 2002). As Hernandez s plenary action is currently pending in the City Part before Justice Barbara Jaffe, the City may renew its motion to dismiss before Justice Barbara Jaffe under Index No. 111100/2009. The Court also may not grant Hernandez s motion to consolidate this special proceeding with the plenary action, as the special proceeding terminates with this decision, order and judgment. See CPLR 4 11. Hernandez may also renew the remainder of his motion in the City Part, where his action Index No. 111100/2009 is currently pending. In accordance with the foregoing, it is ORDERED AND ADJUDGED that plaintiff Russell Hernandez s motion for leave to reargue the Court s decision, order and judgment, dated June 3,2009, is denied; and it is further ORDERED AND ADJUDGED that plaintiff s motion for leave to renew the Court s decision, order and judgment, dated June 3,2009, is granted, and upon renewal, the Court grants Russell Hernandez leave to file a late notice of claim with respect to his unlawful/ false arrest, unlawfdfalse imprisonment, and negligent hiring and retention of employment services claims, and denies Russell Hernandez leave to file a late notice of 9

[* 11] claim with respect to his remaining claims for which a notice of claim is required; and it is hrther ORDERED AND ADJUDGED that the City of New York's cross-motion to dismiss plaintiffs complaint for failure to state a cause of action under CPLR 321 l(a)(7) is denied with leave to renew in the action with Index No. 1111000/2009; and it is hrther ORDERED AND ADJUDGED that the motion and cross-motion in Index No. 111100/2009 are denied with leave to renew before Justice Barbara Jaffe, before whom the action with Index No. 111100/2009 is pending; and it is further ORDERED AND ADJUDGED that the notice of claim annexed to the papers in plaintiff's original application is deemed timely served upon service of a copy of this decision, order and judgment with notice of entry thereof on the respondent the City of New York, as to the causes of action for unlawfdfalse arrest, unlawful/false imprisonment and negligent hiring and retention of employment services &. This constitutes the Decision, Order and Judgment of the Court, Dated: New York, New York April 11,201 1 ENTER: S iann Scarpulla, J.S@. dt \I