Stevenson v. City of New York

Appellate Division of the Supreme Court of New York

Stevenson v. City of New York

248 A.D.2d 248, 671 N.Y.S.2d 218, 1998 N.Y. App. Div. LEXIS 2541

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 1998

StatusPublished

This text of 248 A.D.2d 248 (Stevenson v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stevenson v. City of New York, 248 A.D.2d 248, 671 N.Y.S.2d 218, 1998 N.Y. App. Div. LEXIS 2541 (N.Y. Ct. App. 1998).

Pincite

Opinion

—Order (denominated decision and judgment), Supreme Court, New York County (Jane Solomon, J.), entered on or about October 25, 1996, which, in an action for malicious prosecution, denied plaintiffs motion to vacate a prior order of the same court and Justice granting, on default, defendants’ motion to dismiss the complaint for failure to serve a notice of claim, unanimously affirmed, without costs.

A motion to vacate a default requires both a reasonable excuse and a showing of a meritorious claim. Here, while conceding that the failure to serve a notice of claim is fatal to any State-based tort claim, plaintiff contends that he nevertheless has a meritorious Federal-based tort claim under 42 USC § 1983. We disagree. No facts are adduced tending to show that plaintiff was selectively prosecuted for building code violations because of his race, or that race-based prosecutions were official policy or an officially sanctioned custom (see, Monell v New York City Dept. of Social Servs., 436 US 658, 691).

Concur — Ellerin, J. P., Wallach, Rubin and Tom, JJ.

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—Order (denominated decision and judgment), Supreme Court, New York County (Jane Solomon, J.), entered on or about October 25, 1996, which, in an action for malicious prosecution, denied plaintiffs motion to vacate a prior order of the same court and Justice granting, on default, defendants’ motion to dismiss the complaint for failure to serve a notice of claim, unanimously affirmed, without costs.

A motion to vacate a default requires both a reasonable excuse and a showing of a meritorious claim. Here, while conceding that the failure to serve a notice of claim is fatal to any State-based tort claim, plaintiff contends that he nevertheless has a meritorious Federal-based tort claim under 42 USC § 1983. We disagree. No facts are adduced tending to show that plaintiff was selectively prosecuted for building code violations because of his race, or that race-based prosecutions were official policy or an officially sanctioned custom (see, Monell v New York City Dept. of Social Servs., 436 US 658, 691).

Concur — Ellerin, J. P., Wallach, Rubin and Tom, JJ.

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Bluebook (online)

248 A.D.2d 248, 671 N.Y.S.2d 218, 1998 N.Y. App. Div. LEXIS 2541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevenson-v-city-of-new-york-nyappdiv-1998.

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