A Bronx Estate Lawyer said that, plaintiff moves by order to show cause to deem his late notice of claim to have been timely served upon the defendant City of New York, nunc pro tunc. The defendant opposes and cross moves for the venue of the matter to be changed from Bronx County to Queens County, or, in the alternative for dismissal of the complaint.
The plaintiff, a Queens resident, was arrested on January 17, 2006 outside of his home in Queens County and charged in that County with obstructing governmental administration and resisting arrest. Upon his arrest he was taken to the 107th precinct in Queens County, and thereafter confined, pending trial, in different facilities, including Riker’s Island, which is in the territorial waters of Bronx County. Pending trial, he was confined at Riker’s Island, in Bronx County until January 30, 2006. The plaintiff ultimately went to trial in the County of Queens and on June 1, 2006 was acquitted of all personal injury charges brought against him. He did not commence any civil proceedings or retain an attorney to do so until after his acquittal.
A Bronx Estate Administration Lawyer said that, plaintiff retained his present attorney on August 24, 2006; and on August 29, 2006, filed a (partially untimely) notice of claim against the City, alleging false arrest, false imprisonment, assault and battery, negligent hiring and retention, malicious prosecution and a violation of the plaintiff’s constitutional rights. Although the notice of claim for malicious prosecution was timely filed the 90 day period had expired for claims alleging false arrest, false imprisonment, assault and negligent retention. The alleged civil rights/constitutional violations are not subject to the notice of claims requirements. In any event, a 50-h hearing was held on October 18, 2006, at which the plaintiff gave testimony as to the underlying incident which gave rise to each cause of action.
A Bronx Estate Litigation Lawyer said that, the plaintiff commenced an action by the filing of a summons and verified complaint in Bronx County on January 5, 2007. As in the notice of claim, the complaint alleges causes of action for false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, and a violation of the plaintiff’s constitutional rights.
On January 26, 2007, the defendant served its answer to the personal injury complaint, and included with its answer a demand, pursuant to CPLR 504(3) to change venue to the county of Queens. By Order to Show Cause, dated March 16, 2007, the plaintiff moved pursuant to GML Section 50 to extend his time to serve a notice of claim (for false arrest, false imprisonment, assault and battery) and to have it deemed to have been timely served upon the defendant City of New York. The City cross moved for a change of venue to the County of Queens, or in the alternative for dismissal of the action.
Plaintiff argues initially that all causes of action are properly venued since one of them (false imprisonment) took place in part in Bronx County, and contends therefore that the court has both the jurisdiction and discretion to grant the motion. Plaintiff argues further that since the claims for malicious prosecution and violation of civil rights are timely, and since the City’s investigation on those claims is the same as for all the remaining claims, there is clearly no prejudice to the City to permit a late service of a notice of claim for the tardy claims and to allow the entire action to proceed. Plaintiff argues that, in any event, there will be no prejudice to the defendants if this relief is granted since the defendant had actual knowledge of, and an opportunity to investigate the facts underlying each claim since it was defendant’s agents that made the arrest and participated in the prosecution of the plaintiff.
The City contends that the venue of the matter (including this motion) should be transferred from the Bronx to Queens County pursuant to CPLR 504 (3) since the plaintiff was arrested and prosecuted in Queens, and thus the accident, which “gave rise” to the claims, first occurred in the County of Queens. The City argues, in the alternative, that the motion to file a late notice of claim should be denied because: (1) plaintiff has provided no reasonable excuse for the delay in filing; (2) the city was denied an opportunity to investigate the claims; and (3) the action as well as this motion, were improperly commenced and venued in Bronx County, rather than in the County of Queens (the claimed proper venue for this these actions); and further that the complaint should be dismissed since the filing of a notice of claim is a condition precedent to bringing the action.
To Be Cont…
If you are having issues regarding the venue of an action, seek the help of a Bronx Estate Administration Attorney and Bronx Estate Litigation Attorney at Stephen Bilkis and Associates.