Opinion
1080N
July 24, 2003.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 15, 2002, which denied claimant-appellant's motion to file a late notice of claim, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the matter remanded for further proceedings.
Michael F. Rubin, for claimaint-appellant.
Marta Ross, for defendants-respondents.
Before: Tom, J.P., Saxe, Ellerin, Lerner, Gonzalez, JJ.
Claimant presently is a 22-year-old developmentally disabled man who was arrested on October 13, 1999 in connection with a rape. He is functionally illiterate, with the cognitive abilities of an 11-year-old child, and his mathematical skills are limited to finger-counting, as is established by Board of Education and other records. In May 2000, DNA testing established his innocence, and on November 17, 2000, the Bronx County District Attorney's Office moved for dismissal of all charges against him. On August 20, 2001, claimant moved for leave to file a late notice of claim pursuant to General Municipal Law § 50-e, putting the municipal defendants on notice regarding a civil action alleging false arrest, unlawful imprisonment and malicious prosecution.
A notice of claim must be filed within 90 days after the claim arose (G.M.L. § 50-e[1][a]), though a court may grant the claimant leave to file a late notice of claim within one year and ninety days of accrual (G.M.L. § 50-e[5]; Pierson v. City of New York, 56 N.Y.2d 950). The false arrest and unlawful imprisonment claims accrued on May 25, 2000, when the claimant was released from prison, and the malicious prosecution claim accrued on November 17, 2000, when the proceeding was terminated in his favor by dismissal (Ragland v. New York City Housing Authority, 201 A.D.2d 7). As to both claims, then, the notice of claim was untimely, but the request for leave to file the late notice of claim was timely, so that the court's denial of the request is properly before us for review.
In connection with his motion, claimant noted his mental incapacity, his mother's lack of knowledge of the requirements of § 50-e, and that he had not been represented by counsel during the filing period. He also argued that the facts regarding his arrest and incarceration were within the possession of defendant New York Police Department at all times, knowledge of which should be imputed to defendant New York City. He averred that he was unaware of what should be done upon being released from custody, but asked his mother what he should do in June of 2001. She also did not know what to do, but contacted an attorney, present counsel. Counsel affirms that upon ascertaining that a notice of claim had not been filed, he directed claimant to secure copies of Board of Education documentation in order to establish his disability. These were forwarded to counsel on August 9, 2001, which then became the basis for the present motion. In the meantime, a late notice of claim had been filed, but rejected as untimely, on July 12, 2001.
In reviewing whether the court properly exercised its discretion in granting or denying such a leave motion, we look to, inter alia, whether the claimant was mentally incapacitated, whether the municipality acquired knowledge of the essential facts regarding the cause of action within 90 days of accrual or shortly thereafter, and whether the municipality would be substantially prejudiced if the motion were to be granted (§ 50-e[5]; Ragland v. New York City Housing Authority, supra). For present purposes, the claimant's mental incapacity is sufficiently established, the Police Department had all essential facts in its possession, and under the circumstances of this case, such knowledge may be imputed to the City (Grullon v. City of New York, 222 A.D.2d 257; Goodall v. City of New York, 179 A.D.2d 481). Finally, the Police Department's investigation of the underlying crime for which the defendant was arrested and its continuing involvement until such time as he was released, reasonably precludes substantial prejudice arising from any impediments to an investigation of the civil claim (Grullon,supra; Santana v. City of New York, 183 A.D.2d 665).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.