Opinion
June 19, 1989
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Ordered that the order is reversed, with costs, the motion is granted, and the "amended notice of claim" is deemed served.
As a result of circumstances which are not entirely clear from the present record, the plaintiff Rosemarie Montalto was arrested on November 24, 1986, for custodial interference (see, Penal Law § 135.45) arising out of a custody dispute between her daughter and son-in-law. Mrs. Montalto was apparently fingerprinted, photographed and detained for several hours before her release pending trial. On or about August 7, 1987, the charge was dismissed by the Town Court of the Town of Harrison.
On September 16, 1987, the plaintiffs served the defendant with a notice of claim (see, General Municipal Law § 50-e) premised on false arrest and imprisonment and malicious prosecution. Because of the different accrual dates with respect to the two related but nonetheless distinct claims (see, Broughton v. State of New York, 37 N.Y.2d 451, cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929), the notice was timely served with respect to the cause of action to recover damages for malicious prosecution but was some seven months late with respect to the cause of action to recover damages for false arrest and imprisonment. This action was commenced on November 3, 1987. Virtually simultaneously therewith, the plaintiffs moved (see, CPLR 2211) for leave to serve a late "amended notice of claim" with respect to the false arrest and imprisonment cause of action. In opposition, the defendant asserted only that the plaintiffs offered "no factual basis or valid excuse for [the] delay", and that, therefore, the application should be denied. The Supreme Court denied the motion.
We are not concerned here with the substantive merits of the lawsuit (see, Matter of Reisse v. County of Nassau, 141 A.D.2d 649, 650; Jenkins v. County of Westchester, 133 A.D.2d 808, 809) and the absence of an acceptable excuse for the delay is not necessarily fatal to the application (see, Reisse v. County of Nassau, supra; Matter of Chatman v. White Plains Hous. Auth., 101 A.D.2d 838; Matter of Cicio v. City of New York, 98 A.D.2d 38). The defendant made an insufficient showing of prejudice (cf., Matter of Herman v. Village of Chester, 125 A.D.2d 469, 471). Further, in this case, knowledge of the facts underlying the false arrest and imprisonment claim may be imputed to the defendant (see, Matter of Herman v. Village of Chester, supra). Under the circumstances of this case, the denial of the plaintiffs' motion was an improvident exercise of discretion. Brown, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.