Petitioner Chris Navarro ("Navarro") moves pursuant to General Municipal Law §50-e for an order granting him leave to file a late Notice of Claim against the City of New York ("the City") for claims of assault by police officers during an arrest. He and a group of individuals were asked for identification by police officers for alleged public drinking. He did not want to provide it because he had violated his parole. He finally did and the police became aware of the parole violation and he was arrested for the parole violation. He was also charged with resisting arrest. The charges of resisting arrest were adjourned in contemplation of dismissal pursuant to CPL §170.55 on October 14, 2006.

The alleged assault by the police officers occurred on October 12, 2006. The petitioner was taken to the hospital with bruising contusions and a broken bone to his right temple. As noted, Navarro at the time of incident had a warrant for violation of parole. Therefore as a result of the October 12th incident, he was incarcerated for the parole violation. While in jail, he prepared a Notice of Claim dated October 31, 2006 for a claim alleging assault by the police officers who arrested him. On November 4, 2006, the petitioner sent the Notice of Claim to his girl friend with a request for her to mail it for him, because he did not have the funds to send the Notice of Claim to the City "return receipt requested". Navarro's girl friend mailed the Notice of Claim to the City on January 13, 2007, which was three (3) days past the ninety (90) day period.

Petitioner received an acknowledgment letter from the comptrollers office, dated March 2, 2007, regarding the receipt of his Notice of Claim which stated that the claim was under investigation. Navarro communicated with his current attorney and hired him as counsel in June of 2007 advising his attorney that he had filed a Notice of Claim. In November of 2007 when petitioner was released from jail, he met with his attorney and gave him the paper work relating to the filing of the Notice of Claim. It was not until six (6) weeks later that the attorney realized that the Notice of Claim had been filed three (3) [*2]days late. A case was filed in the United States District Court for the Eastern District of New York against the City of New York for federal civil rights violations relating to the alleged incident in the Notice of Claim as well as for state law claims for the alleged assault.

Petitioner was required to file a timely Notice of Claim pursuant to General Municipal Law (GML) §50-e arising from the October 12, 2006 incident by January 10, 2007. Navarro's late Notice of Claim was filed without leave of court three days after the time to file had expired. The instant application to permit the Notice of Claim filed on January 13, 2007 to be accepted as timely was made on January 9, 2008. Navarro's makes this application so as to allow him to proceed with his state law claims in the federal action.

Service of a Notice of Claim is a condition precedent to the commencement of a

tort action against the municipality. (Clayton Industries, Inc. v City of Newburgh ( 17 AD3d 309 [2dDept 2005]). Petitioner's filing of a late Notice of Claim was served without leave of

court and outside of the ninety (90) day requirement under GML 50-e . (Small v New

York City Transit Authority, 14 AD3d 690, [ 2d Dept 2005], Santiago v City of New York , 294 AD2d 483 [2d Dept 2002], Friedman v City of New York, 19 AD3d 542 [ 2d Dept 2005 ].) The failure to serve the notice within ninety (90) days makes it a nullity. (Laroc v City of New York, 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007] , Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ].)

A Court in its discretion may extend the time under GML § 50-e, to serve a Notice of Claim. In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely notice of claim, whether he municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. (Acosta v City of New York, 39 AD3d 629 [2nd Dept., 2007], Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept., 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept., 2001], Hobgood v New York City Housing Authority, 253 AD2d 555 [2nd Dept., 1998]).

Although Navarro states that the reason why the Notice of Claim was filed late is

because of a mistake on the part of his girlfriend, it is clear that mistake alone cannot be considered a reasonable excuse for delay. (Dell'Italia v Long Island Rail Road Corp. 31

AD3d 758 [2d Dept 2006]). Additionally the excuse of the failure of the law office to discover that the Notice of Claim was not timely which was proffered by Navarro's attorney does not constitute a reasonable excuse. (Astree v New York City Transit Authority, 31 AD3d 589 [ 2d Dept 2006], Matter of King v New York City Transit Authority, 274 AD2d 482 [2d Dept 2000].)

In determining whether to permit the filing of a late Notice of Claim, the presence [*3]or absence of any one factor under GML§ 50-e is not determinative, and the absence of a

reasonable excuse for the delay is not necessarily fatal. (Nardi v County of Nassau 18

AD3d 520 [2nd Dept., 2006], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept., 1993].) Consequently, the Court will consider whether the City received actual notice of the facts constituting the claims.

Actual knowledge of the essential facts of the claim must have been acquired by the City, not just knowledge of the occurrence. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], Chattergoon v New York City Housing Authority, 197 AD2d 397 [1st Dept. 1993], Casias v City of New York, 39 AD3d 681 [2d Dept 2007]).

In this case, the Court considered that the Notice of Claim was served only three days late. General Municipal Law § 50-e states in pertinent part that;

Upon application, the court, in its discretion, may extend

the time to serve a notice of claim specified in paragraph

(a) of subdivision one. The extension shall not exceed the

time limited for the commencement of an action by the

claimant against the public corporation. In determining

whether to grant the extension, the court shall consider,

in particular, whether the public corporation or its attorney

or its insurance carrier acquired actual knowledge of the

essential facts constituting the claim within the time

specified in subdivision one or within a reasonable

time thereafter. (emphasis added)

Here the Court looks to the fact that the Notice of Claim, although served late, was served within a "reasonable time thereafter", because it was served only three days after the time to file had expired.

The Court next looks to whether the Notice of Claim itself contained the essential facts constituting the claim of assault by the police officers.The Appellate Division Second Department in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], stated that:

In order to have actual knowledge of the

essential facts constituting the claim, the

public corporation must have knowledge

of the facts that underlie the legal theory

or theories on which liability is predicated

in the notice of claim; the public corporation [*4]

need not have specific notice of the theory

or theories themselves.

The Notice of Claim in addition to having the date, time, and place of the arrest describes the incident as "police brutality" and further describes the injuries of a "swollen nose, two black eyes, injuries to right side of face, scrapes to left side of face, head injuries, left shoulder injured, top, mid lower back injuries, busted left side of head", therefore giving the City the facts which underlie petitioner's legal theory.

Furthermore, in additional submissions requested by the Court, the petitioner provided copies of petitioner's arrest report and other documents which note that the petitioner was treated for injuries, giving the City facts regarding the injuries within the ninety (90) day period under GML §50-e.

Moreover, the Court considered whether the defendant would be prejudiced by such a delay in service of the late Notice of Claim. The arrest documents supplied to the

court for review, in addition to noting the petitioner was treated for injuries, contain the names of the police officers involved in the arrest, and narratives regarding the crimes of

resisting arrest and possession of an open alcohol beverage, as well as, a memo book

entry of the arresting officer. These arrest documents, in conjunction with the letter sent to the petitioner by the comptrollers office dated March 2, 2007, which remarked that the City would investigate the claims that Navarro asserted in the Notice of Claim, demonstrate that the City will be able to defend the action without prejudice.

Additionally, the First Department in Pearson v. NYCHHC, 43 AD3d 92 (1st Dept 2007) affirmed 10 NY3d 852 (2008), allowed a Notice of Claim filed six months late without leave of court finding that the municipality was not prejudiced and noted:

.....defendant s possession of medical records affording

it actual knowledge or the essential facts constituting the

claim that it negligently failed to perform risk assessment

or provide anticipatory guidance for lead poisoning, and

the consequent absence of prejudice, stemming from the

late notice, to its ability to defend against the claim.

(Citations omitted). While the dissent asserts that the

defendant was prejudiced by plaintiff's delay in seeking

to serve a late Notice of Claim until almost two (2) years

after the infants last appointment at Harlem Hospital, it

neglects to note that plaintiff served a Notice of Claim,

albeit without leave of the court, on February 20, 2004,

just over six months after his daughter's last appointment.

Accordingly, the application to serve a late Notice of Claim is granted.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

July 14, 2008