Petitioner, Global Liberty Insurance Company a/s/o Norsel Global Inc. (hereinafter "Global") moves for leave to file a late notice of claim.

This is an action by an insurance company to recover payments made to its insured for a vehicle that was car-jacked on

November 25, 2009.

The New York City Police Department responded to the scene and generated a criminal complaint. Shortly after the car-jacking the detective who took the complaint recovered the vehicle "blocking a residential driveway". The record reveals that the officer cancelled the alarm regarding the stolen vehicle but took no action regarding the vehicle. The property owner, whose driveway was blocked, called the police and that responding officer issued a summons to the vehicle as a result of which it was towed to American Auto Body and Recovery. The second responding officer determined that the vehicle was "not stolen". The insured owner of the vehicle was not notified that the vehicle had been recovered and filed a claim with the petitioner who made payment on January 27, 2010.

In July of 2010, American Auto Body notified petitioner with regard to the vehicle which was accruing bailment fees.

The petitioner and the respondent each set forth different dates as to when the claim arose; respondent claiming the date of the car-jacking while the petitioner asserts that it should be the date they gained knowledge of the vehicles whereabouts.

A Notice of Claim must be served within ninety days after the claim arises (GML 50-e[1][a]). However, a court may grant the claimant leave to serve a late Notice of Claim if leave is sought within the time limited for the commencement of the action (See Pierson v. City of New York, 56 NY2d 950 [1982]).

Under either party's interpretation, petitioner's motion was made prior to the expiration of the statute of limitations and is therefore timely (see id.).

"In determining whether to grant leave to serve a late notice of claim, the court must consider certain factors, including, inter alia, whether the claimant demonstrated a reasonable excuse for failing to timely serve a notice of claim, whether the respondents acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a [*2]reasonable time thereafter, and whether the respondents were substantially prejudiced by the delay" (Kumar v. City of New York, 52 AD3d 517 [2d Dept. 2008] (citing GML 50-e(5); Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 143-45 [2d Dept. 2008]; Rennell S. v. North Jr. High School, 12 AD3d 518 [2d Dept. 2004]; Valestil v. City of New York, 295 AD2d 619 [2d Dept. 2002])).

Notwithstanding the issue as to when the claim actually arose.

Petitioner has set forth a reasonable excuse for delay by submitting the affidavit of John Stewart, a Special Investigator Supervisor for Global, that Global did not discover that the subject vehicle was not stolen and instead was accruing fees at an impound lot until July of 2010 (See Cifuentes v. New York City Health & Hosps. Corp., 43 AD3d 385, 386 [2d Dept. 2007]; Bertone Comissioning v. City of New York, 27 AD3d 222, 222-24 [1st Dept. 2006]).

Respondent, the City, has actual knowledge by virtue of the fact that its employees engaged in the conduct that gave rise to the claim (See Erichson v. City of Poughkeepsie Police Dept., 66 AD3d 820, 821 [2d Dept. 2009]; Brownstein v. Incorporated Vil. of Hempstead, 52 AD3d 507, 509 [2d Dept. 2008]; Schiffman v. City of New York, 19 AD3d 206, 207 [1st Dept. 2005]) and further are in possession of the records and documents related to this incident. Therefore, they have not been prejudiced by the delay (See Vasquez v. City of Newburgh, 35 AD3d 621, 623 [2d Dept. 2006]; Schiffman, 19 AD3d at 207).

Accordingly, petitioner's motion for leave to file a late notice of claim is granted. Petitioner shall serve and file an amended Notice of Claim no later then April 8, 2011

March 28, 2011 ____________________

J.S.C.