Opinion
January 24, 1980
Appeal from the Otsego Supreme Court.
Present — Cardamone, J.P., Hancock, Jr., Doerr, Witmer and Moule, JJ.
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 A.D.2d 151; Mulligan v Lackey, 33 A.D.2d 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 A.D.2d 534; Matter of Wemett v County of Onondaga, 64 A.D.2d 1025). It was, therefore, an abuse of discretion to deny permission to file a late notice of claim.