While it is true that the arresting officer filed reports with the Housing Authority and with the Criminal Court, those files and reports are not available to the Housing Authority at this time. The certificate of disposition submitted by the petitioner clearly indicates that the charges were dismissed and sealed.
It is clear, therefore, that the Housing Authority does not have access to the files of the Criminal Court, the District Attorney, or even the files maintained by the Housing Authority’s Police Department, since it is a police agency. Accordingly, the imputed knowledge which ordinarily would be the equivalent of a prompt investigation does not presently fulfill that function in this case. Furthermore, these sealed records may be made available only to the defendant or his designated agent. It would appear that under these circumstances, the Housing Authority’s contention that it would suffer substantial prejudice if the petitioner were granted leave to serve a late notice of claim is meritorious.
When, as in this case, there is a real possibility that the sealing of criminal records might substantially prejudice the defendant in a civil action by precluding it from establishing a meritorious defense, the courts have applied the concept of implied waiver of the statutory rights.
The petitioner herein has not yet instituted a plenary civil suit but simply seek leave to serve a late notice of claim. However, this distinction in the procedural posture of the instant matter warrants a different result. The reality is that serving such a notice of claim is a condition precedent to instituting a civil action against the Housing Authority. Indeed, the County Court recently addressed a similar application for access to the sealed records of a woman. The woman had been acquitted of four counts of murder in the second degree and arson in the first degree. Subsequently, she filed a notice of claim against the Town to recover for false arrest and imprisonment and malicious prosecution.
It is clear that as long as the files of the Criminal Court, the District Attorney, and the Housing Authority’s Police Department remain sealed, the Authority is substantially prejudiced, and the granting of leave to serve a late notice of claim must be considered an improvident exercise of discretion. However, should the petitioner provide the necessary consents and authorizations permitting the appellant access to these files, the prejudice dissipates and the granting of leave to serve a late notice is appropriate. In this regard, that in considering applications for leave to serve late notices of claim under circumstances similar to those here, the trial courts should keep in mind that original stenographic notes of criminal prosecutions need only be preserved for two years, after which they may be destroyed.
Accordingly, the judgment is modified, on the law and as a matter of discretion, by adding a provision thereto that leave to serve a late notice of claim is contingent upon the petitioner’s delivery to the appellant of the appropriate consents and authorizations for the appellant to examine, inspect, and copy the file and record, and to unseal the records of the Police Department of the Housing Authority dealing with that same case, and in the event that condition is not complied with, then the notice of claim shall be stricken, and the motion for leave to serve a late notice of claim denied. As so modified, the judgment is affirmed, without costs or disbursements, and the petitioner’s time to comply with the condition is extended until 30 days after service upon him of a copy of this opinion and order, with notice of entry.
Being accused of sexual harassment or rape could harm a person and his family even if he is proven innocent.