Cooper v. City of Rochester

84 A.D.2d 947, 446 N.Y.S.2d 644, 1981 N.Y. App. Div. LEXIS 16221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1981
• Status: Published

Opinion

Order unanimously affirmed, without costs. Memorandum: On this appeal from an order denying claimant’s motion for permission to serve and file a late notice of claim, we agree with Special Term’s determination that claimant failed to show that the public corporation timely acquired actual knowledge of the essential facts constituting the claim (see General Municipal Law, § 50-e, subd 5). In affirming, however, we note that had claimant demonstrated that the chief of police had timely acquired such actual knowledge it would have constituted knowledge of the municipality. Cases relied upon by Special Term and holding that knowledge of its police officers is not knowledge of the public corporation (see Williams v Town of Irondequoit, 59 AD2d 1049; Phillips v State of New York, 36 AD2d 679; Bommarito v State of New York, 35 AD2d 458) would apply where the claimed knowledge is that of the alleged tort-feasors and not, as here, where the claimed knowledge is that of the person having authority over the police department and responsibility for the conduct of its officers (see Matter of Waterhouse v Hastings, 73 AD2d 1034). (Appeal from order of Monroe Supreme Court, Pine, J. — late notice of claim.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and Moule, JJ.