| Matter of LaMay v County of Oswego |
| 2008 NY Slip Op 02671 [49 AD3d 1351] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Crystal LaMay, Appellant, v County of Oswego etal., Respondents. |
—[*1] Richard C. Mitchell, County Attorney, Oswego (Christa L. Carrington of counsel), forrespondents-respondents.
Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered January 8, 2007. The order denied petitioner's application for leave to serve a late noticeof claim.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the application is granted upon condition that the proposed notice of claim isserved within 20 days of the date of entry of the order of this Court.
Memorandum: We agree with petitioner that Supreme Court abused its discretion in denyingher application for leave to serve a late notice of claim. The record establishes that petitionersustained injuries on March 11, 2006 as the result of respondents' alleged negligence inresponding to 911 calls reporting that petitioner had taken an overdose of medication in anattempt to commit suicide. Petitioner did not seek leave to serve a late notice of claim untilNovember 29, 2006. "In determining whether leave to serve a late notice of claim should begranted, the key factors are whether the [petitioner] has shown a reasonable excuse for the delay,whether the municipality had actual [knowledge] of the essential facts constituting the claimwithin 90 days of its accrual . . . or within a reasonable time thereafter, and whetherthe delay would substantially prejudice the municipality in maintaining its defense"(Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855, 856 [2002] [internalquotation marks omitted]; see General Municipal Law § 50-e [5]).
In support of her application, petitioner established that, following her overdose, she was in acoma from March 11, 2006 to May 5, 2006 and sustained permanent damage to her internalorgans, and that her delay in serving a notice of claim was attributable to those injuries (see Matter of Haeg v County ofSuffolk, 30 AD3d 519, 520 [2006]; Matter of McHugh v City of New York, 293AD2d 478 [2002]). In any event, even assuming, arguendo, that petitioner failed to offer areasonable excuse for her delay in serving a notice of claim, we note that such failure " 'is not[*2]fatal where . . . actual notice was had and thereis no compelling showing of prejudice to [respondents]' " (Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053 [2004];see Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). Petitionercontended in support of her application that, in the hours before petitioner was foundunconscious in her home, an Oswego County Sheriff's Deputy was dispatched to her home ontwo occasions to investigate reports that she had overdosed on medication but that the Sheriff'sDeputy negligently failed to ascertain whether petitioner required medical treatment. Thus,respondents "acquired notice of the essential facts based upon the facts that police were called tothe scene and were directly involved in all aspects of the claim[ ]" (Matter of Schiffman v City of NewYork, 19 AD3d 206, 207 [2005]; see Ayala v City of New York, 189 AD2d 632,633-634 [1993]). The incident reports created by respondent Oswego County Sheriff'sDepartment and the Oswego County E 911 records also demonstrate that "respondents wereaware of the essential facts constituting the claim within the statutory time period" (Matter ofGilbert v Eden Cent. School Dist., 306 AD2d 925, 926 [2003]; see Bazer v Town ofWalworth, 277 AD2d 994 [2000]). Finally, "[r]espondents failed to substantiate theirconclusory assertions that they were substantially prejudiced by the . . . delay"(Gilbert, 306 AD2d at 926-927; see Love v City of Auburn, 280 AD2d 982, 983[2001]). Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.