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THE COUNTY HAD TIMELY KNOWLEDGE OF THE NATURE OF PETITIONER’S EXCESSIVE-FORCE CLAIM AGAINST THE POLICE AND DID NOT DEMONSTRATE PREJUDICE FROM THE DELAY IN FILING A NOTICE OF CLAIM; THAT PETITIONER DID NOT HAVE AN ADEQUATE EXCUSE WAS NOT DETERMINATIVE; THE APPLICATION TO SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this “excessive force” action against the police should have been granted. The county had timely knowledge of the nature of the claim and the county did not demonstrate prejudice from the delay. The absence of an adequate excuse was not determinative:

… [T]he petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the County of Suffolk and the SCPD, alleging, inter alia, that he had sustained personal injuries due to the use of excessive force by the arresting officers. …

In determining whether to grant an application for leave to serve a late notice of claim, the court is required to consider all relevant facts and circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense … . …

… [T]he respondents had timely actual knowledge of the essential facts constituting the petitioner’s claim, since their employees participated in the acts giving rise to the claim and filed reports and prepared other documentation with respect to the subject incident from which it could be readily inferred that the respondents had committed a potentially actionable wrong … . Matter of Romero v County of Suffolk, 2022 NY Slip Op 04966, Second Dept 8-17-22

Practice Point: Here the county had timely knowledge of the nature of petitioner’s excessive-force claim against the police and the county could not demonstrate any prejudice from petitioner’s late filing. The absence of an adequate excuse for failure to file on time was not determinative. Petitioner’s application to file a late notice of claim should have been granted.

 

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