FILED: ERIE COUNTY CLERK 09/27/ :06 AM INDEX NO /2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/27/2018

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1 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE NICHOLAS H. BELSITO, Plaintiff, ATTORNEY AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE TO FILE LATE NOTICE OF CLAIM vs. Index No.: COUNTY OF ERIE ERIE COUNTY SHERIFF'S DEPARTMENT DEPUTY KENNETH P. ACHTYL DEPUTY JAMES W. FLOWERS, Defendants. STATE OF NEW YORK ) COUNTY OF ERIE ) : ss Aaron F. Glazer, ESQ., being duly sworn deposes and states as follows: 1. I am an attorney at law duly licensed to practice within the State of New York and am a member of the law firm of Gibson, McAskill & Crosby, LLP, attorneys for the claimant, NICHOLAS H. BELSITO, and as such I am fully familiar with the facts and circumstances as set forth herein. 2. I make this Affirmation in support of the claimant's motion for leave to file late notice of claim as is provided for in GML 50(e). 3. NICHOLAS H. BELSITO is a 26 year old college student from Cornwall, New York. He attends the University of Buffalo and majors in Biological Studies. Prior to the belowdescribed incident, he had never been arrested for, or convicted of, any criminal offense. 4. On December 3, 2017, Mr. Belsito attended a Buffalo Bills football game with a friend at New Era Field in Orchard Park, New York. 1 of 6

2 5. Prior to the game, his friend was arrested in a parking lot adjacent to New Era Field by Deputies KENNETH P. ACHTYL and JAMES W. FLOWERS. 6. After the arrest, Mr. Belsito attempted to ascertain where his friend would be taken for booking and processing in order that Mr. Belsito would be able to pick him up upon his release. 7. After having conversation with the above-referenced deputies, Mr. Belsito walked away from the vehicle in which the deputies were sitting. 8. As he walked away, DEPUTY KENNETH P. ACHTYL, exited his patrol car, attacked Mr. Belsito from behind and wrongfully arrested Mr. Belsito on erroneous and fabricated criminal charges. 9. The incident that gives rise to the claim was recorded and captured in-full by numerous video cameras, including the body cameras of deputies ACHTYL and FLOWERS. 10. As indicated above, the incident took place on December 3, A notice of claim was not filed within 90 (ninety) days, and therefore, we now request the Court's permission to file a late notice of claim. 11. A variety of issues caused a notice of claim not to be filed within the statutory period. 12. In December of 2017, Mr. Belsito was in the midst of final exams at college. He was forced to study for, and take such exams while suffering from a variety of serious and permanent injuries caused by the above-referenced assault. 13. Upon finishing his final examinations, he returned to his home in Cornwall, New York. 14. He returned to school in late January of 2018 and then returned home again in May of of 6

3 15. Further, as noted above, erroneous criminal charges were filed against Mr. Belsito on December 3, 2017, for which he sought criminal defense counsel. 16. Upon watching the video footage of the incident and thereby learning of the erroneous nature of the charges, the Erie County District Attorney's Office dismissed the charges in their entirety, with prejudice. However, said charges were not dismissed until on or about June 14, During the period of time between 12/3/17 and 6/14/18, Mr. Belsito and his family were subjected to and concerned with, resolving Mr. Belsito's erroneous criminal charges, seeking treatment for his injuries and assisting him in continuing his education. 17. Following the resolution of Mr. Belsito's criminal charges (in absentia), he returned to Buffalo, New York on or about August 24, Mr. Belsito contacted the undersigned on or about August 29, As the Court is aware, sub-section (5) of General Municipal Law 50(e) allows for an extension of time to serve a notice of claim, provided said extension does not exceed the time limit for the commencement of an action by the claimant against the public corporation. 20. The injury at issue occurred on December 3, One year and ninety days from the date of injury is March 3, As such it is respectfully submitted that claimant's request for an extension in the present case does not exceed the time limit for commencement of an action against Respondents. 22. As this Court is further aware, the Court is vested with broad discretion when determining whether to grant an application for leave to file late notice of claim. See Bazer v. Town of Walworth, 277 N.Y.S.2d 523 (4th Dept. 2000); Wemett v. County of Onondaga, 409 N.Y.S.2d 312, 313 (4th When considering an application to file a late notice of claim against an entity, the Court should take into account a number of factors, including (a) the reasonableness of the excuse -3-3 of 6

4 offered for the delay; (b) whether the entity obtained actual knowledge of the essential facts constituting a claim within the 90 day filing period or within a reasonable time thereafter; and (c) whether the entity was prejudiced by the applicant's failure to comply with the statute, i.e., to file a notice of claim within 90 (ninety) days. NYS CLS Gen. Mun. 50(e); Williams v. City of Niagara Falls, 664 N.Y.S.2d 217, 218 (4th Dept. 1997). 24. The General Municipal Law further provides that "[t]he court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, mentally or physically incapacitated, or died before the time limited for service of the notice of claim. 25. In such cases, General Municipal Law 50(e) permits the court to strike an equitable balance between a public entity's need for prompt notification of claims against it and the injured party's need and interest in just compensation. Ferrer v. City of New York, 567 N.Y.S.2d 734 (1991). 26. Claimant's own physical and emotional incapacities following the incident impeded his understanding of the true nature and severity of his injuries, which are ongoing. 27. In addition to the multiple fractures and other injuries sustained by Claimant, at the time of the incident, he was also attempting to competently and successfully complete his semester and final exams at college. As is noted above, he and his family were also faced with defending erroneous criminal charges in a jurisdiction far from home. 28. It is respectfully submitted that the determinative factor in considering whether Claimant should be allowed to file late notice of claim against Respondents is whether Respondents are prejudiced at all by the filing of a late notice of claim in the present case. 29. It is further respectfully submitted, for the foregoing reasons, that there is absolutely no prejudice to respondents in allowing late notice of claim, given that the incident that gives rise to the claim was recorded by several individuals, including both deputies in question of 6

5 30. Such video footage is readily accessible and available for review. 31. Further, the deputies initiated charges against Claimant which indicates they were familiar enough with the incident to levy such charges. The charging paperwork clearly indicates a "full investigation" by the deputies of the incident that gives rise to this claim. The charging paperwork is attached hereto as Exhibit A. 32. In sum, Respondents have already investigated this matter and have actual knowledge and complete video footage of the incident that gives rise to the claim. 33. Moreover, Claimant is available for full questioning by Respondents, as he would have been had a notice of claim been filed earlier. 34. Deponent respectfully submits that Claimant should be allowed to serve a late notice of claim pursuant to General Municipal Law 50(e)(5) for the reasons previously set forth and because (1) only a short time has elapsed between the 90 (ninety) day limit and the present; (2) the Respondents have not been deprived of the opportunity to obtain relevant information in response to the notice of claim and/or in defense thereof; (3) Claimant remains readily available for questioning/discovery; (4) Respondents have full and complete knowledge and actual notice of the facts that give rise to the claim and have video footage of the entirety of the incident. 35. As previously indicated, there is no prejudice whatsoever to Respondents in allowing late notice of claim and there is a clear indication of the merits of claimant's claim. 36. In Terrigino v. Village of Brockport, 930 N.Y.S.2d 744 (4th Dept. 2011), the court held that a pedestrian's failure to offer an excuse for the delay in serving the Village with a notice of claim regarding a slip and fall on a Village sidewalk was not fatal to a petition for leave to file late notice of claim. The court held as such because the Village had actual knowledge of the asserted facts underlying the claim within a reasonable time after the 90 day period, and because -5-5 of 6

6 the Village failed to substantiate its conclusory assertion that it was substantially prejudiced by the delay. 37. Likewise in the present case, Respondents obtained actual knowledge of the incident as it was taking place, and camera footage of the incident along with audio has been preserved. Respondents cannot show prejudice. 38. Finally, courts are empowered with great flexibility in allowing late notice of claim, especially where there is no prejudice to respondents. New York courts have consistently held that where photographs depicting the scene of the incident as it was at the time of the happening of the incident negate any potential claims of prejudice due to the service of late notice of claim. See Barnes v. New York City Hous. Auth., 692 N.Y.S.2d 463 (l" Dept. 1999). As noted above, in the present case, there is full and complete video of the entirety of the incident that gives rise to the claim. A copy of the proposed Notice of Claim is attached as Exhibit B. WHEREFORE, it is respectfully requested that claimant NICHOLAS H. BELSITO, be granted leave to file a late notice of claim upon Respondents for purposes of pursuing his injury claim relative to the above-referenced assault, and for such other and further relief to Claimant as the Court deems just and proper. Dated: September 27, 2018 AARON F GLA ES of 6