IN RE: Maxine SCHIFFMAN (2005)

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered January 23, 2004, denying petitioner's application to serve and file a late notice of claim and dismissing the proceeding, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the application granted.

 General Municipal Law § 50-e(5) confers upon the court discretion to determine whether to allow filing of a late notice of claim.   Factors to be considered include, “whether the public corporation ․ acquired actual knowledge of the essential facts constituting the claim within the [90 day period] or within a reasonable time thereafter” and “whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits” (General Municipal Law § 50-e[5] ).   While the court has discretion in determining these motions, the statute is remedial in nature and as such should be liberally construed (Camacho v. City of New York, 187 A.D.2d 262, 589 N.Y.S.2d 421 [1992] ).

 It was an abuse of the motion court's discretion to have denied plaintiff's motion.   This case involved the police's actions in response to an alleged assault and ensuing civilian struggle.   As such, the City acquired notice of the essential facts based upon the facts that police were called to the scene and were directly involved in all aspects of the claims emanating from the death of plaintiff's decedent (Ayala v. City of New York, 189 A.D.2d 632, 633, 592 N.Y.S.2d 352 [1993] ).   Such knowledge is documented in the individual officers' memo books and official Police Department reports (Johnson v. New York City Tr. Auth., 278 A.D.2d 83, 717 N.Y.S.2d 580 [2000];  Miranda v. New York City Tr. Auth., 262 A.D.2d 199, 694 N.Y.S.2d 352 [1999] ).   The same circumstances show that respondent was not prejudiced by the delay in filing the notice of claim (see Johnson, id.;  Miranda, id.;  Goodall v. City of New York, 179 A.D.2d 481, 578 N.Y.S.2d 178 [1992] ).   Accordingly, we reverse the order appealed and grant plaintiff's motion.