Barbara Jaffe
DECISION AND JUDGMENT
BARBARA JAFFE, JSC:
For claimant self-represented:
Raul Rosa
For defendant:
Stacy L. Cohen, ACC
Michael A. Cardozo
Corporation Counsel
By order to show cause dated December 13, 2011, claimant moves pursuant to General Municipal Law § 50-e for an order granting him leave to serve, nunc pro tunc, a late notice of claim. Defendant New York City Police Department (City) opposes.
On October 14, 2010, claimant, who is deaf and requires a sign language interpreter to communicate, alleges that he was assaulted and injured by police officers while they were arresting him, and that while he was in detention at various prison facilities, he was unable to file a notice of claim as no sign language interpreters were employed there. On February 7, 2011, claimant was transferred to his current facility and thereafter unsuccessfully attempted to file a notice of claim dated April 20, 2011 with the assistance of an interpreter. City rejected the notice as untimely. (Affidavit of Raul Rosa, dated Oct. 13, 2011).
City argues that the New York City Police Department is not an entity capable of being sued, denies that claimant has asserted a reasonable excuse for his delay and observes that he offered no explanation as to why he was unable to file the instant application between February 7, 2011 and the motion date or why his disability prevented him from communicating in writing to request assistance, and denies that it had actual knowledge of the claim or incident or that it is not prejudiced by the delay as claimant's criminal records are sealed. (Affirmation of Stacey L. Cohen, ACC, dated Feb. 10, 2012).
In reply, claimant maintains that he has limited written English skills and was unable to prepare the notice of claim without the assistance of a sign language interpreter, and concedes that the correct defendant here is City. (Reply Affidavit, dated Feb. 23,2012).
As claimant has alleged that police officers assaulted him and as he was criminally prosecuted for the arrest at issue, knowledge of his claim'may be imputed to City. (See Erichson v City of Poughkeepsie Police Dept., 66 AD3d 820 [2d Dept 2009] [city police department acquired actual knowledge of assault claim as police department employees engaged in conduct at issue]; Ansong v City of New York, 308 AD2d 333 [1st Dept 2003] [City's lack of knowledge of claim refuted by fact that officers who allegedly assaulted plaintiff had immediate knowledge of events at issue]; Nunez v City of New York, 307 AD2d 218 [1st Dept 2003] [as police department possessed all essential facts, actual knowledge imputed to City]; Justiniano v New York City Hous. Auth. Police, 191 AD2d252 [1st Dept 1993] [knowledge of malicious prosecution claim could be imputed to municipality through officers who initiated prosecution]; Goodall v City of New York, 179 AD2d 481 [1st Dept 1992] [knowledge imputed to City as police investigated incident to prepare for criminal prosecution]; Tatum v City of New York, 161 AD2d 580 [2d Dept 1990], Iv denied 76 NY2d 709 [police arrest report and District Attorney's investigation may be considered actual or constructive knowledge to City]).
And in light of City's actual knowledge of petitioner's claims, there is no resulting prejudice. (Nunez, 307 AD2d at 220 [police department's investigation of alleged crime committed by petitioner and continued involvement in case until petitioner's release precludes substantial prejudice]; Ansong, 308 AD2d at 334 [respondent's claim of prejudice meritless as police and criminal court records pertaining to petitioner's arrest and prosecution presumably still exist]).
Finally, to the extent that petitioner has not set forth a a reasonable excuse for his delay, its absence is not fatal under these circumstances. (Ansong, 308 AD2d at 334 [lack of reasonable excuse insufficient to deny late notice of claim especially as respondent had actual knowledge of claims and no prejudice resulted from delay]). In any event, absent any dispute that no sign language interpreters were available to claimant until after February 2011, his inability to prepare a notice of claim due to his disability constitutes a reasonable excuse for the delay.
As claimant has not yet served his notice of claim, the fact that he named the Police Department therein rather than City is irrelevant, especially as City was served with the instant application. Accordingly, it is hereby
ORDERED and ADJUDGED, that claimant's application for leave to serve a late notice of claim is granted on condition that: (1) within 30 days of the date of this order, claimant serve his notice of claim upon the City of New York; and (2) within 30 days of defendant's service on claimant of the required authorizations, claimant deliver to defendant signed authorizations for it to examine, inspect, and copy the file and record in the criminal proceeding against him, and to unseal the police records in connection therewith; and it is further
ORDERED and ADJUDGED, that in the event that claimant does not comply with this conditions within the timeframes reflected above after service upon him of a copy of this decision and order with notice of entry, then the notice of claim is stricken, and the motion for leave to serve a late notice of claim is denied.
ENTER:
___________
Barbara Jaffe, JSC:
DATED: June 1, 2012
New York, New York