Opinion
306 CA 15-00963.
04-29-2016
Kimberly LAWTON, Claimant–Appellant, v. TOWN OF ORCHARD PARK and Orchard Park Police Department, Respondents–Respondents.
Hogan Willig, PLLC, Amherst (Scott Michael Duquin of Counsel), for Claimant–Appellant. Barclay Damon, LLP, Buffalo (James P. Domagalski of Counsel), for Respondents–Respondents.
Hogan Willig, PLLC, Amherst (Scott Michael Duquin of Counsel), for Claimant–Appellant.
Barclay Damon, LLP, Buffalo (James P. Domagalski of Counsel), for Respondents–Respondents.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
Opinion
MEMORANDUM:
Claimant appeals from an order denying her application for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5) for her claims for, inter alia, false arrest and imprisonment and malicious prosecution. Supreme Court abused its discretion in denying the application. Claimant demonstrated a reasonable excuse for her delay in serving the notice of claim, i.e., the continued pendency until March 2014 of the criminal prosecution against her and, following that, the continued pendency of the child custody litigation that was an outgrowth of the criminal prosecution (see generally Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 12–13, 613 N.Y.S.2d 937 ). In any event, the failure to tender a reasonable excuse would not have been fatal to claimant's application inasmuch as respondents had actual knowledge of the essential facts constituting the claim within the 90–day period and, indeed, had actual notice of the facts underlying the claims of false arrest/imprisonment and malicious prosecution at the time of the accrual of those claims (see Nunez v. City of New York, 307 A.D.2d 218, 220, 762 N.Y.S.2d 384 ; Grullon v. City of New York, 222 A.D.2d 257, 258, 635 N.Y.S.2d 24 ). Moreover, respondents “ ‘made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ ” (Casale v. Liverpool Cent. Sch. Dist., 99 A.D.3d 1246, 1247, 951 N.Y.S.2d 439 ; see Matter of Hall v. Madison–Oneida County Bd. of Coop. Educ. Servs., 66 A.D.3d 1434, 1435, 885 N.Y.S.2d 690 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is granted upon condition that the proposed notice of claim is served within 20 days of the date of entry of the order of this Court.