        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
