Delzotto v. Warren County

• Decision Date: 25 February 1988
• Citation: 525 N.Y.S.2d 373,137 A.D.2d 950
• Parties: In the Matter of Pat DELZOTTO et al., Appellants, v. COUNTY OF WARREN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 373

525 N.Y.S.2d 373

137 A.D.2d 950

In the Matter of Pat DELZOTTO et al., Appellants, v. COUNTY OF WARREN et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 25, 1988.

The Wilcox Firm (Robert D. Wilcox, of counsel), Troy, for appellants.

Carter, Conboy, Bardwell, Case & Blackmore (Dianne Bresee Mayberger, of counsel), Albany, for respondents.

Before KANE, J.P., and CASEY, LEVINE, HARVEY and MERCURE, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Dier, J.), entered May 27, 1987 in Warren County, which denied petitioners' applicati pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim.

The issue on appeal is whether petitioners should be granted leave to file a late notice of claim with respect to claimed violations by respondents of the Federal Civil Rights Act of 1871 (42 U.S.C. § 1983). On April 21, 1986, petitioner Pat Delzotto was allegedly arrested by officers of respondent Warren County Sheriff's Department and charged with grand larceny in the second degree. The charge was later dismissed. On July 8, 1986, petitioner served a notice of claim upon respondents alleging that the April 21, 1986 incident gave rise to claims for false arrest, false imprisonment, malicious prosecution and abuse of process. The notice of claim did not allege a violation of 42 U.S.C. § 1983.

On November 20, 1986, the Court of Appeals held, in 423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474, 510 N.Y.S.2d 507, 503 N.E.2d 63, cert. denied 481 U.S. 1008, 107 S.Ct. 1880, 95 L.Ed.2d 488, that the notice of claim requirements of General Municipal Law § 50-i, as limited by General Municipal Law § 50-e, apply to Federal civil rights actions. Upon learning of this decision by the Court of Appeals, petitioners sought, by an order to show cause dated April 6, 1987, permission to serve a late notice of claim asserting Federal civil rights claims against respondents. The application was denied without opinion. This appeal ensued.

We reverse. This court is vested with broad discretion in considering whether service of a late notice of claim should be permitted ( Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189; Matter of Febles v. City of New York, 44 A.D.2d 369, 372, 355 N.Y.S.2d 147; see, Matter of Chmielewski v. City of New York, 61 N.Y.2d 1010, 475 N.Y.S.2d 377, 463 N.E.2d 1229). Among the factors to be considered in determining whether to grant leave to file a late notice of claim are whether the public corporation had actual knowledge of the essential facts constituting the claim within the 90-day period or a reasonable time thereafter and whether the delay in serving the notice of claim substantially prejudiced the public corporation in preparing its defense (General Municipal Law § 50-e[5]; see, Baker v. Board of Educ. of W. Irondequoit Cent. School Dist., 127 A.D.2d 967, 513 N.Y.S.2d 307, revd. on other grounds 70 N.Y.2d 314, 520 N.Y.S.2d 538, 514 N.E.2d 1109; Barnes v. County of Onondaga, 103 A.D.2d 624, 629-630, 481 N.Y.S.2d 531, affd. 65 N.Y.2d 664, 491 N.Y.S.2d 613, 481 N.E.2d 245).

Here, the initial notice of claim of petitioners, which was served July 8, 1986, put respondents on notice in a timely fashion of the essential facts which support the Federal civil rights claim. The facts were further...