Opinion
January 16, 1992
Appeal from the Supreme Court, Bronx County (Herbert Shapiro, J.).
The plaintiffs sought to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) to recover damages for assault and battery, wrongful arrest and false imprisonment, malicious prosecution and violations of 42 U.S.C. § 1983 (Federal Civil Rights Act). After the plaintiffs were arrested on July 5, 1989, all charges against them were dismissed on January 9, 1990.
We agree with the plaintiffs that the Supreme Court improvidently exercised its discretion by denying the plaintiffs' motion to file a late notice of claim. The facts and circumstances surrounding the incident were investigated by the Civilian Complaint Review Board after a Civilian Complaint Report was filed. The incident was also investigated by the police in preparation for the criminal prosecution of the plaintiffs. Accordingly, knowledge of the facts constituting the plaintiffs' claims may be imputed to the defendants who will not be prejudiced by the delay in filing the notice of claim (Tatum v City of New York, 161 A.D.2d 580, lv denied 76 N.Y.2d 709; McKenna v. City of New York, 154 A.D.2d 655; Montalto v. Town of Harrison, 151 A.D.2d 652). Finally, we note that the absence of an acceptable excuse for the delay is not fatal to the plaintiffs' application (Montalto v. Town of Harrison, supra; Matter of Cicio v. City of New York, 98 A.D.2d 38).
Concur — Carro, J.P., Rosenberger, Ellerin and Ross, JJ.
Kupferman, J., dissents and would affirm for the reasons stated by Shapiro, J.