Hayden v. Incorporated Village of Hempstead

• Decision Date: 09 July 1984
• Parties: James HAYDEN, Sr., et al., Appellants, v. INCORPORATED VILLAGE OF HEMPSTEAD, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 392

477 N.Y.S.2d 392

103 A.D.2d 765

James HAYDEN, Sr., et al., Appellants, v. INCORPORATED VILLAGE OF HEMPSTEAD, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

July 9, 1984.

Kutner, Gurlides, Kutner & Picciano, Mineola (Harry H. Kutner, Jr. and Stephen D. Kutner, Mineola, of counsel), for appellants.

Cullen & Dykman, Garden City (Terry D. Weissman, Hempstead, of counsel), for respondents.

Before THOMPSON, J.P., and BRACKEN, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a late notice of claim, petitioners appeal (1) from an order of the Supreme Court, Nassau County, dated August 31, 1982, which denied their application and (2) as limited by their brief, from so much of an order of the same court, dated October 25, 1982, as, upon reargument, adhered to its original determination.

Appeal from order dated August 31, 1982, dismissed. That order was superseded by the order dated October 25, 1982.

Order dated October 25, 1982 modified, on the law, and as a matter of discretion, by deleting the provision adhering to the original determination with respect to petitioner James Hayden and substituting therefor a provision granting petitioner James Hayden leave to serve a late notice of claim, and order dated August 31, 1982 modified accordingly. As so modified, order dated October 25, 1982 affirmed insofar as appealed from, without costs or disbursements.

Special Term erred when it found that the Incorporated Village of Hempstead did not have actual knowledge of the essential facts constituting petitioner James Hayden's claims. Generally, in cases involving intentional torts committed by police officers in the scope of their duty, courts have held that knowledge of the tort-feasors is not knowledge of the public corporation (see Williams v. Town of Irondequoit, 59 A.D.2d 1049, 399 N.Y.S.2d 807; Phillips v. State of New York, 36 A.D.2d 679, 319 N.Y.S.2d 767; Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581). However, under the circumstances of this case, said holdings are not applicable. Here, the village clerk, one of the alleged tort-feasors, acquired actual knowledge of the essential facts constituting the intentional torts allegedly committed by him and the individual respondents within the statutory 90-day period. The village clerk is a person designated by law to accept service of a notice of claim on the village (see General Municipal Law, § 50-e, subd. 3, par. CPLR 311, subd. 6). Consequently, the village clerk's knowledge may be imputed to the village (see Mestel v. Board of Educ., 90 A.D.2d 809, 459 N.Y.S.2d 667; Matter of Cooper v. City of Rochester, 84 A.D.2d 947, 446 N.Y.S.2d 644).

Furthermore, the village conducted an investigation of the facts surrounding petitioner James Hayden's arrest and resignation within three months after the statutorily prescribed period for serving a notice of claim expired, when the union commenced, on Mr. Hayden's behalf, an article 78 proceeding seeking, inter alia, Mr. Hayden's reinstatement to his job with the Department of Recreation and Parks. Aside from the mere passage of time, respondents have not set forth any evidence that Mr. Hayden's delay in applying for leave to serve a late notice of claim would substantially prejudice the village in the maintenance of its...