Schiffman v. City of New York

Appellate Division of the Supreme Court of New York

Schiffman v. City of New York

19 A.D.3d 206, 797 N.Y.S.2d 450, 2005 N.Y. App. Div. LEXIS 6711

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 2005

StatusPublished

Cited by9 cases

This text of 19 A.D.3d 206 (Schiffman v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schiffman v. City of New York, 19 A.D.3d 206, 797 N.Y.S.2d 450, 2005 N.Y. App. Div. LEXIS 6711 (N.Y. Ct. App. 2005).

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Opinion

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 AD2d 262 [1992]).

It was an abuse of the motion court’s discretion to have denied petitioner’s motion. This case involved the actions of the police 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 petitioner’s decedent (Ayala v City of New York, 189 AD2d 632, 633 [1993]). Such knowledge is documented in the individual officers’ memo books and official Police Department reports (Johnson v New York City Tr. Auth., 278 AD2d 83 [2000]; Miranda v New York City Tr. Auth., 262 AD2d 199 [1999]). The same circumstances show that respondent was not prejudiced by the delay in filing the notice of claim (see Johnson, supra; Miranda, supra; Goodall v City of New York, 179 AD2d 481 [1992]). Accordingly, we reverse the order appealed and grant petitioner’s motion. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.

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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 AD2d 262 [1992]).

It was an abuse of the motion court’s discretion to have denied petitioner’s motion. This case involved the actions of the police 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 petitioner’s decedent (Ayala v City of New York, 189 AD2d 632, 633 [1993]). Such knowledge is documented in the individual officers’ memo books and official Police Department reports (Johnson v New York City Tr. Auth., 278 AD2d 83 [2000]; Miranda v New York City Tr. Auth., 262 AD2d 199 [1999]). The same circumstances show that respondent was not prejudiced by the delay in filing the notice of claim (see Johnson, supra; Miranda, supra; Goodall v City of New York, 179 AD2d 481 [1992]). Accordingly, we reverse the order appealed and grant petitioner’s motion. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.

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19 A.D.3d 206, 797 N.Y.S.2d 450, 2005 N.Y. App. Div. LEXIS 6711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiffman-v-city-of-new-york-nyappdiv-2005.

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