O'Dell v. Town of Greenport
| Decision Date | 17 November 1983 |
| Citation | 470 N.Y.S.2d 710,97 A.D.2d 887 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Charles W. O'DELL, Appellant, v. TOWN OF GREENPORT et al., Respondents. |
William P. Curran, Rosendale, for appellant.
Robert J. Marvin, Rhinebeck (Thomas F. Kelly, Rhinebeck, of counsel), for respondents.
Before MAHONEY, P.J., and KANE, MAIN, CASEY and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered November 3, 1982 in Ulster County, which denied claimant's application for leave to file a late notice of claim.
Claimant alleges that on December 12, 1981, he was badly beaten by defendant John R. Hawks, a police officer employed by defendant Town of Greenport, in the course of his arrest of claimant on a charge of driving while intoxicated. Claimant further contends that he was unable to file a notice of claim within the 90-day time period following the incident, as required by section 50-e (subd. 1, par. [a] ) of the General Municipal Law, because he was hospitalized for most of the period of time between December 13, 1981 and February 16, 1982, and that, thereafter, his physical infirmities required him to be confined to his house where he lived alone, without telephone or transportation. He did not obtain counsel until some six months after he was injured.
Subdivision 5 of section 50-e provides that the court "in its discretion, may extend the time to serve a notice of claim * * * ". In determining whether to grant an extension, the court is to "consider, in particular, whether the public corporation * * * acquired actual knowledge of the essential facts constituting the claim within [the 90-day period] or within a reasonable time thereafter" (General Municipal Law, § 50-e, subd. 5). The court is also to consider "all other relevant facts and circumstances including: whether the claimant was * * * mentally or physically incapacitated * * * and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (id.).
Claimant has failed to satisfy two of these considerations. First, there is no evidence that defendant town received actual notice of the claim. The fact that Officer Hawks may have had notice of claimant's claim does not constitute the required notice to defendant town. "[K]nowledge of its police officers is not knowledge of the public corporation" (Matter of Cooper v. City of Rochester, 84 A.D.2d 947, 446 N.Y.S.2d 644; see, also, Williams v. Town of Irondequoit, 59...
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