| Erichson v City of Poughkeepsie Police Dept. |
| 2009 NY Slip Op 07580 [66 AD3d 820] |
| October 20, 2009 |
| Appellate Division, Second Department |
| William R. Erichson, Appellant, v City of PoughkeepsiePolice Department et al., Respondents. |
—[*1] G. Brian Morgan, Corporation Counsel, Poughkeepsie, N.Y. (Lynn M. DiCerbo, Attorney atLaw, P.C., of counsel), for respondents.
In an action to recover damages for assault, the plaintiff appeals, as limited by his brief, fromso 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 exerciseof discretion, with costs, and that branch of the plaintiff's motion which was pursuant to GeneralMunicipal 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 thediscretion 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 AD2d 614, 615 [1999]). Afactor that should be accorded great weight is whether the public corporation acquired timelyactual knowledge of the essential facts constituting the claim (see Matter of Brownstein v IncorporatedVil. of Hempstead, 52 AD3d 507, 509 [2008]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 147 [2008]; Matter of Dell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759[2006]; Matter of Battle v City of New York, 261 AD2d at 615).
Here, the City of Poughkeepsie Police Department (hereinafter the City) had actualknowledge of the facts underlying the plaintiff's claim, as its own employees engaged in theconduct which gave rise to the claim (see Picciano v Nassau County Civ. Serv. Commn.,290 AD2d 164, 174 [2001]; Matter of Ragland v New York City Hous. Auth., 201AD2d 7, 11 [1994]; Tatum v City of New York, 161 AD2d 580, 581 [1990];McKenna v City of New York, 154 AD2d 655 [1989]). In addition, the original notice ofclaim, which was served only six days beyond the statutory period, was sufficiently particular toapprise the City of the plaintiff's claim of assault within a reasonable time after the claim accrued(see Matter of Gelish v Dix Hills WaterDist., 58 AD3d 841, 842 [2009]; Bussey v City of New York, 50 [*2]AD3d 938, 939 [2008]; Matter of Fritsch v Westchester CountyDept. of Transp., 170 AD2d 602 [1991]). Since the City acquired timely knowledge of theessential facts of the claim, the plaintiff met his initial burden of showing a lack of substantialprejudice to the City's ability to maintain a defense on the claim (see Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 152; Jordan v City of New York, 41 AD3d658, 660 [2007]; Gibbs v City ofNew York, 22 AD3d 717, 720 [2005]). In opposition, the City failed to demonstratesubstantial prejudice (see Matter ofBrownstein v Incorporated Vil. of Hempstead, 52 AD3d 507, 510 [2008]; Jordan v City of New York, 41 AD3d658, 660 [2007]; Gibbs v City of New York, 22 AD3d at 720) or that the plaintiff'sunderlying claim was patently without merit (see Matter of Leeds v Port Washington Union Free School Dist., 55AD3d 734 [2008]; Matter ofChambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]).
Finally, where there is actual notice and an absence of prejudice, the lack of a reasonableexcuse will not bar the granting of leave to serve a late notice of claim (see Brownstein vIncorporated Vil. of Hempstead, 52 AD3d at 510; Matter of Rivera-Guallpa v County of Nassau, 40 AD3d 1001,1002 [2007]; Gibbs v City of New York, 22 AD3d at 720). Accordingly, that branch ofthe plaintiff's motion which was for leave to serve a late notice of claim should have beengranted. Fisher, J.P., Florio, Angiolillo, Eng and Roman, JJ., concur.