BREGE, VINCENT E. v. TOWN OF TONAWANDA ( 2017 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    374
    CA 16-01573
    PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
    VINCENT BREGE, PLAINTIFF-APPELLANT,
    V                             MEMORANDUM AND ORDER
    TOWN OF TONAWANDA, DEFENDANT-RESPONDENT.
    LAW OFFICE OF ERIC B. GROSSMAN, WILLIAMSVILLE (ERIC B. GROSSMAN OF
    COUNSEL), FOR PLAINTIFF-APPELLANT.
    COLUCCI & GALLAHER, P.C., BUFFALO (RYAN L. GELLMAN OF COUNSEL), FOR
    DEFENDANT-RESPONDENT.
    Appeal from an order of the Supreme Court, Erie County (Diane Y.
    Devlin, J.), entered June 23, 2016. The order denied the application
    of plaintiff to deem his proposed notice of claim timely served nunc
    pro tunc, or in the alternative, for leave to serve a late notice of
    claim.
    It is hereby ORDERED that the order so appealed from is
    unanimously modified on the law by granting plaintiff’s application in
    part and that part of the notice of claim alleging false arrest, false
    imprisonment and malicious prosecution is deemed timely served nunc
    pro tunc, and as modified the order is affirmed without costs.
    Memorandum: Plaintiff appeals from an order denying his
    application to deem his proposed notice of claim timely served nunc
    pro tunc, or in the alternative, for leave to serve a late notice of
    claim pursuant to General Municipal Law § 50-e (5) for his claims for,
    inter alia, false arrest, false imprisonment and malicious
    prosecution. We conclude that Supreme Court abused its discretion in
    denying the application with respect to those three claims based
    solely on plaintiff’s failure to provide a reasonable excuse for the
    delay. It is well established that “a [plaintiff’s] failure to tender
    a reasonable excuse is not fatal where . . . actual notice was had and
    there is no compelling showing of prejudice to [defendant]” (Casale v
    Liverpool Cent. Sch. Dist., 99 AD3d 1246, 1246 [internal quotation
    marks omitted]). Here, defendant had actual knowledge of the
    essential facts underlying those claims within the 90-day period (see
    Lawton v Town of Orchard Park, 138 AD3d 1428, 1428, lv denied 27 NY3d
    912). Moreover, plaintiff met his initial burden of showing that the
    late notice would not substantially prejudice defendant and, in
    opposition, defendant failed to make a “particularized showing” of
    substantial prejudice caused by the late notice (Matter of Newcomb v
    Middle Country Cent. Sch. Dist., 28 NY3d 455, 468; see Lawton, 138
    -2-                           374
    CA 16-01573
    AD3d at 1428).
    We further conclude, however, that the court properly denied that
    part of the application with respect to the claim for defamation (see
    generally Grullon v City of New York, 222 AD2d 257, 258). Plaintiff
    made no showing that defendant had actual knowledge of the essential
    facts underlying that claim (cf. Lawton, 138 AD3d at 1428), and
    plaintiff failed to meet his initial burden of presenting “some
    evidence or plausible argument that supports a finding of no
    substantial prejudice” regarding that claim (Newcomb, 28 NY3d at 466).
    Entered:   March 31, 2017                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 16-01573

Filed Date: 3/31/2017

Precedential Status: Precedential

Modified Date: 3/31/2017