Goodall v. City of New York

179 A.D.2d 481

Opinion

The plaintiffs sought to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) to recover damages for assault and battery, wrongful arrest and false imprisonment, malicious prosecution and violations of 42 USC § 1983 (Federal Civil Rights Act). After the plaintiffs were arrested on July 5, 1989, all charges against them were dismissed on January 9, 1990.

We agree with the plaintiffs that the Supreme Court improvidently exercised its discretion by denying the plaintiffs’ motion to file a late notice of claim. The facts and circumstances surrounding the incident were investigated by the Civilian Complaint Review Board after a Civilian Complaint Report was filed. The incident was also investigated by the police in preparation for the criminal prosecution of the plaintiffs. Accordingly, knowledge of the facts constituting the plaintiffs’ claims may be imputed to the defendants who will not be prejudiced by the delay in filing the notice of claim (Tatum v City of New York, 161 AD2d 580, lv denied 76 NY2d 709; McKenna v City of New York, 154 AD2d 655; Montalto v Town of Harrison, 151 AD2d 652). Finally, we note that the absence of an acceptable excuse for the delay is not fatal to the plaintiffs’ application (Montalto v Town of Harrison, supra; Matter of Cicio v City of New York, 98 AD2d 38). Concur —Carro, J. P., Rosenberger, Ellerin and Ross, JJ.

Kupferman, J., dissents and would affirm for the reasons stated by Shapiro, J.