ERICHSON v. CITY OF POUGHKEEPSIE POLICE DEPARTMENT (2009)

In an action to recover damages for assault, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated October 6, 2008, as denied that branch of his motion which was pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim is granted.

 A court, after considering all relevant facts and circumstances presented to it, has the discretion to extend the time to serve a notice of claim (see General Municipal Law § 50-e[5];  Matter of Battle v. City of New York, 261 A.D.2d 614, 615, 690 N.Y.S.2d 698).   A factor that should be accorded great weight is whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim (see Brownstein v. Incorporated Vil. of Hempstead, 52 A.D.3d 507, 509, 859 N.Y.S.2d 682;  Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218;  Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81;  Matter of Battle v. City of New York, 261 A.D.2d at 615, 690 N.Y.S.2d 698).

 Here, the City of Poughkeepsie Police Department (hereinafter the City) had actual knowledge of the facts underlying the plaintiff's claim, as its own employees engaged in the conduct which gave rise to the claim (see Picciano v. Nassau County Civ. Serv. Commn., 290 A.D.2d 164, 174, 736 N.Y.S.2d 55;  Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 11, 613 N.Y.S.2d 937;  Tatum v. City of New York, 161 A.D.2d 580, 581, 555 N.Y.S.2d 158;  McKenna v. City of New York, 154 A.D.2d 655, 546 N.Y.S.2d 660).   In addition, the original notice of claim, which was served only six days beyond the statutory period, was sufficiently particular to apprise the City of the plaintiff's claim of assault within a reasonable time after the claim accrued (see Matter of Gelish v. Dix Hills Water Dist., 58 A.D.3d 841, 842, 872 N.Y.S.2d 486;  Bussey v. City of New York, 50 A.D.3d 938, 939, 854 N.Y.S.2d 912;  Matter of Fritsch v. Westchester County Dept. of Transp., 170 A.D.2d 602, 566 N.Y.S.2d 377).   Since the City acquired timely knowledge of the essential facts of the claim, the plaintiff met his initial burden of showing a lack of substantial prejudice to the City's ability to maintain a defense on the claim (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 152, 851 N.Y.S.2d 218;  Jordan v. City of New York, 41 A.D.3d 658, 660, 838 N.Y.S.2d 624;  Gibbs v. City of New York, 22 A.D.3d 717, 720, 804 N.Y.S.2d 393).   In opposition, the City failed to demonstrate substantial prejudice (see Brownstein v. Incorporated Vil. of Hempstead, 52 A.D.3d 507, 510, 859 N.Y.S.2d 682;  Jordan v. City of New York, 41 A.D.3d 658 at 660, 838 N.Y.S.2d 624;  Gibbs v. City of New York, 22 A.D.3d at 720, 804 N.Y.S.2d 393) or that the plaintiff's underlying claim was patently without merit (see Matter of Leeds v. Port Washington Union Free School Dist., 55 A.D.3d 734, 865 N.Y.S.2d 349;  Matter of Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135, 857 N.Y.S.2d 222).

Finally, where there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim (see Brownstein v. Incorporated Vil. of Hempstead, 52 A.D.3d at 510, 859 N.Y.S.2d 682;  Matter of Rivera-Guallpa v. County of Nassau, 40 A.D.3d 1001, 1002, 836 N.Y.S.2d 288;  Gibbs v. City of New York, 22 A.D.3d at 720, 804 N.Y.S.2d 393).   Accordingly, that branch of the plaintiff's motion which was for leave to serve a late notice of claim should have been granted.