MATTER OF ANSONG v. City of New York

• Decision Date: 11 September 2003
• Citation: 308 A.D.2d 333,764 N.Y.S.2d 182
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of CHARLES ANSONG, Appellant,<BR>v.<BR>CITY OF NEW YORK, Respondent.

308 A.D.2d 333

764 N.Y.S.2d 182

In the Matter of CHARLES ANSONG, Appellant,

v.CITY OF NEW YORK, Respondent.

Decided September 11, 2003.

Concur — Buckley, P.J., Tom, Sullivan and Marlow, JJ.

Petitioner claims that at 5:30 A.M. on July 25, 2001, New York City police officers awoke him, entered his apartment, attacked him and pushed him off his eighth floor balcony causing him to sustain various physical injuries. Petitioner was thereafter arrested and prosecuted until the case against him was dismissed on September 24, 2001. Petitioner served respondent with a notice of claim dated July 15, 2002 and moved on August 9, 2002 for permission to file a late notice of claim nunc pro tunc. The IAS court denied petitioner's application on the grounds that: (1) petitioner failed to establish that respondent acquired actual knowledge of the claim within 90 days or a reasonable time thereafter; and (2) petitioner failed to support his excuse of physical incapacitation with medical evidence from a doctor or other medical provider. Since respondent's employees allegedly assaulted petitioner and, therefore, must have had actual knowledge, and since a lack of reasonable excuse is not sufficient, without more, to deny an application for leave, we reverse.

Respondent's claimed lack of actual knowledge is completely refuted by the fact that the officers who allegedly assaulted petitioner would, as respondent's employees, have had immediate knowledge of the events giving rise to this dispute (see Diallo v City of New York, 224 AD2d 339, 340 [1996] [petitioner, who went to police station to report a robbery, but who was assaulted by police officers, was permitted to serve and file late notice of claim where court found that actual knowledge of allegedly malicious prosecution could have been imputed to the City through the police officers in its employ who were timely alleged to have beaten petitioner]). Respondent's claim of prejudice is similarly meritless since police and Criminal Court records pertaining to petitioner's arrest, as well as the favorable disposition of charges against him, are presumably still in existence (see Ali v Bunny Realty Corp., 253 AD2d 356, 358 [1998] [no prejudice inuring to the New York City Housing Authority in lead poisoning case brought by infant and his mother where this Court found that Department of Health inspection records and violation notices pertaining to the premises where claimants lived presumably remained in existence]).

Pursuant to section 50-e (1) of the General Municipal Law, a notice of claim must generally be filed within 90 days after a claim against a municipality or municipal authority arises (Matter of Freudenthal v County of Nassau, 99 NY2d 285, 293 [2...