| Matter of Dewey v Town of Colonie |
| 2008 NY Slip Op 07057 [54 AD3d 1142] |
| September 25, 2008 |
| Appellate Division, Third Department |
| In the Matter of Richard Dewey et al., Respondents, v Town ofColonie et al., Appellants. |
—[*1] Conway & Kirby, Latham (Kimberly B. Furnish of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Stein, J.), entered October 25,2007 in Albany County, which granted petitioners' application pursuant to General MunicipalLaw § 50-e (5) for leave to file a late notice of claim.
Petitioner Richard Dewey injured his right knee in March 2007 when he slipped and fell on amuddy slope as he was walking in a marked pedestrian lane in the Town of Colonie, AlbanyCounty. In August 2007, petitioners sought leave to serve a late notice of claim againstrespondents. Supreme Court granted the application and this appeal ensued.
The decision to permit the late filing of a notice of claim pursuant to General Municipal Law§ 50-e (5) is committed to the discretion of the trial court (see Matter of Heffelfinger v Albany Intl.Airport, 43 AD3d 537, 538 [2007]). In exercising such discretion, "the trial court mustconsider certain statutory factors, including whether the respondent had actual knowledge of theessential facts constituting the claim, whether there exists a reasonable excuse for any delay infiling the notice of claim and whether the delay has caused substantial prejudice to any defense tothe claim" (Matter of Apgar v WaverlyCent. School Dist., 36 AD3d 1113, 1114 [2007]). No one factor, however, is dispositiveof the issue (see Matter of Welch v Board of Educ. of Saratoga Cent. School Dist., 287AD2d 761, 762-763 [2001]). In this case, we conclude that Supreme Court properly consideredeach of the pertinent factors and did not abuse its [*2]discretion ingranting leave to file a late notice of claim.
The record reveals that respondents had actual notice of the essential facts underlying theclaim given that, among other things, respondent Town of Colonie Police Department and theColonie Emergency Medical Services were present at the scene and assisted Dewey after he fell.Indeed, the Police Department prepared an accident report setting forth details concerning theincident and the Emergency Medical Services transported him to a local hospital. Further,Freedom of Information Law (hereinafter FOIL) requests seeking various documents were madeby petitioners and their attorneys to the Police Department and the Town Attorney for respondentTown of Colonie.
As for petitioners' excuse for the delay, the record bears out that they were originally unawareof respondents' potential liability until they had the chance to review the materials thatrespondents provided to them in connection with their FOIL requests. The FOIL responses werefurnished to petitioners two days after their time in which to file a notice of claim had expired.Approximately five weeks later, petitioners sent a letter to respondents notifying them of theincident and, one week after that, petitioners made an application for leave to serve a late noticeof claim. Thus, in view of petitioners' initial difficulty in determining respondents' possibleconnection to the matter and the relatively voluminous nature of the FOIL materials that had tobe examined, we cannot say that petitioners' delay was unreasonable.
Finally, we do not find that substantial prejudice would enure to respondents by allowing thefiling of a late notice of claim. An accident report containing details of the incident was compiledon the date that it occurred. Moreover, respondents' conclusory assertions regarding theavailability of witnesses and/or their abilities to recall events are unsubstantiated by the record.
Cardona, P.J., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is affirmed,with costs.