| Matter of Burgess v County of Suffolk |
| 2008 NY Slip Op 09392 [56 AD3d 769] |
| November 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Todd Burgess, Appellant, v County ofSuffolk et al., Respondents, and Town of Babylon, Respondent. |
—[*1] Paul J. Margiotta, Town Attorney, Lindenhurst, N.Y. (Donna M. Somma of counsel), forrespondent-respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals (1) from an order of the Supreme Court, Suffolk County(Werner, J.), dated October 23, 2006, which denied the petition, and (2), as limited by his brief,from so much of an order of the same court (Farneti, J.), dated September 27, 2007, as, uponreargument, adhered to the original determination.
Ordered that the appeal from the order dated October 23, 2006, is dismissed, as that orderwas superseded by the order dated September 27, 2007, made upon reargument; and it is further,
Ordered that the order dated September 27, 2007, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the respondent-respondent.
To commence a tort action against a municipality, a claimant must serve a notice of claimwithin 90 days of the alleged injury (General Municipal Law § 50-e [1] [a]). Pursuant toGeneral Municipal Law[*2]§ 50-e (5), the court may, in itsdiscretion, extend the time to serve a notice of claim (see Matter of Lodati v City of NewYork, 303 AD2d 406 [2003]; Matter of Allen, 268 AD2d 520 [2000]). Indetermining whether to grant an application for leave to serve a late notice of claim, "[t]he keyfactors which the Supreme Court must consider are whether the movant demonstrated areasonable excuse for the failure to serve a timely notice of claim, whether the municipalityacquired actual notice of the essential facts of the claim within 90 days after the claim arose or areasonable time thereafter, and whether the delay would substantially prejudice the municipalityin its defense" (Matter of Valestil v City of New York, 295 AD2d 619 [2002]; seeGeneral Municipal Law § 50-e [5]; Matter of Hicks v City of New York, 8AD3d 566 [2004]; Matter of Kittredge v New York City Hous. Auth., 275 AD2d 746[2000]).
Neither the presence nor the absence of any one factor is determinative (see Matter ofDell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 758-759 [2006]; Matter of Morris vCounty of Suffolk, 88 AD2d 956 [1982], affd 58 NY2d 767 [1982]). However,whether the municipality received actual knowledge of the facts constituting the claim in a timelymanner is seen as "a factor which should be accorded great weight" (Matter of Dell'Italia vLong Is. R.R. Corp., 31 AD3d at 759; see Matter of Alexander v Board of Educ. for Vil.of Mamaroneck, 18 AD3d 654 [2005]).
Here, the Supreme Court providently exercised its discretion in denying the petitioner'sapplication for leave to serve a late notice of claim. The Town of Babylon did not have anyknowledge of the claim until the petitioner brought this proceeding six months after hismotorcycle accident. The petitioner's proffered excuse for the delay, his mistaken belief that thelocation of the highway where the accident occurred was within the jurisdiction of the County ofSuffolk and the Village of Farmingdale, is unacceptable due to the unexplained additional3½-month period of time which elapsed between the discovery of his error and thecommencement of this proceeding (see Matter of Morris v County of Suffolk, 58 NY2d767 [1982]; Pagan v New York City Hous. Auth., 175 AD2d 114 [1991]).
Moreover, granting leave to serve a late notice of claim would result in prejudice to the Townsince it was denied the opportunity to investigate whether the alleged dangerous condition was acause of the accident, due to the passage of time and the possible changed conditions of theaccident site (see Matter of Cattell v Town of Brookhaven, 21 AD3d 896 [2005];Perre v Town of Poughkeepsie, 300 AD2d 379 [2002]).
Upon reargument, the court properly adhered to its original determination (see Columbov Columbo, 50 AD3d 617 [2008]). Fisher, J.P., Balkin, McCarthy and Leventhal, JJ., concur.