Slater v. Village of Herkimer

73 A.D.2d 1061, 425 N.Y.S.2d 408, 1980 N.Y. App. Div. LEXIS 10031

Opinion

— Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiff appeals from an order denying him permission to file a late notice of claim which arose from an alleged collision between a vehicle driven by plaintiff and one of defendant’s police vehicles. In determining this question, the court should inquire whether the defendant acquired actual knowledge of the facts constituting the claim within the 90-day statutory period or a reasonable time thereafter (General Municipal Law, § 50-e, subd 5). Plaintiff relies upon documentary evidence presented in his brief, but not contained in the record, to prove that defendant had such knowledge. We may not consider such evidence (Charlotte Lake Riv. Assoc. v American Ins. Co., 68 AD2d 151; Mulligan v Lackey, 33 AD2d 991). We nonetheless find, under the circumstances here, that defendant did have actual knowledge of the facts constituting the claim (see Matter of Wade v City of New York, 65 AD2d 534; Matter of Wemett v County of Onondaga, 64 AD2d 1025). It was, therefore, an abuse of discretion to deny permission to file a late notice of claim. (Appeal from order of Otsego Supreme Court — notice of claim.) Present — Cardamone, J. P., Hancock, Jr., Doerr, Witmer and Moule, JJ.