

Cassell v City of New York (2018 NY Slip Op 02135)





Cassell v City of New York


2018 NY Slip Op 02135


Decided on March 27, 2018


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 27, 2018

Mazzarelli, J.P., Andrias, Webber, Oing, Moulton, JJ.


6106 22935/15

[*1]James Cassell, Plaintiff- Appellant,
vThe City of New York, et al., Defendants-Respondents.


Umoh Law Firm, PLLC, Brooklyn (Uwem Umoh of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered October 26, 2016, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff alleges that he sustained personal injuries during the course of two encounters with police officers. Plaintiff concedes that timely service of process was not effected on the individual officers (see CPLR 306-b; Property Clerk, N.Y. City Police Dept. v Ford, 92 AD3d 401 [1st Dept 2012]). Plaintiff's claim of municipal liability under 42 USC § 1983 is abandoned because, in the motion court, he did not oppose the City's argument that the complaint had failed to state a section 1983 claim (see Kronick v L.P. Thebault Co., LLC, 70 AD3d 648, 649 [2d Dept 2010]).
Regarding plaintiff's state law claims alleging municipal liability, no notice of claim was filed regarding the alleged December 5, 2012 incident (see Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 467 [1st Dept 2012], affd 21 NY3d 983 [2013]). Nevertheless, with respect to both that incident and the alleged incident that occurred on January 30, 2013, the complaint was filed well after the expiration of the one year and 90-day statute of limitations (see General Municipal Law § 50-i).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 27, 2018
CLERK


