Motion to Dismiss Granted When Plaintiff Filed a Late Notice of Claim and Plaintiff Failed to Raise Triable Issues of Fact
September 1, 2020 Posted By Maria E. Stamatelatos Risk Managment
Justice Lyle E. Frank of the New York Supreme Court recently issued a decision in Lazzarini v. City of New York, finding that plaintiff’s filing of a notice of claim against the City of New York was untimely and granting defendants’ motion for summary judgment.
Plaintiff filed a notice of claim on the City of New York on April 14, 2016 after being arrested by the New York City Police Department on October 24, 2015 after being involved in an altercation in a deli.
The Court found that the notice of claim was untimely for all claims except for false arrest, false imprisonment and malicious prosecution. The Court noted that plaintiff did not dispute the untimeliness of the notice of claim, plaintiff did not request leave of the Court to file a late notice of claim, and the Court found that the statute of limitations had expired. Additionally, the Court stated that plaintiff failed to comply with General Municipal Law § 50-e , all plaintiff’s causes of action other than her claims for false arrest, false imprisonment and malicious prosecution were untimely. Defendants moved for summary judgment regarding the timely causes of action.
The Court concluded that the City made its prima facie entitlement to summary judgment regarding the claims of false arrest, false imprisonment and malicious prosecution. The Court reasoned that as plaintiff admitted to the officers that she struck the complaining witness in the head, the complaining witness stated to the police officers that plaintiff struck her, and taking the statement from the employee of the deli that there had been a fight therein, these statements and observations were sufficient to establish probable cause for plaintiff’s arrest and prosecution as a matter of law. The Court further found that plaintiff failed to raise genuine, material issues of fact requiring a trial. Defendant’s motion to dismiss and for summary judgment was granted.
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