| Gonzalez v County of Nassau |
| 2008 NY Slip Op 09557 [57 AD3d 480] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Franklin R. Gonzalez, Respondent, v County of Nassau,Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S. R.Pagano, and Mitchell Gittin of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.),entered June 20, 2007, as denied that branch of its motion which was to dismiss the complaint forfailure to serve a timely notice of claim, and granted that branch of the plaintiff's cross motion which wasfor leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).
Ordered that the order is affirmed insofar as appealed from, with costs.
In exercising its discretion in determining whether to permit late service of a notice of claim, a courtmust consider all relevant circumstances, including whether (1) the claimant is an infant, (2) the movanthas demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (3) the publiccorporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual ora reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation indefending on the merits (see General Municipal Law § 50-e; Matter of Leeds v Port Washington Union FreeSchool Dist., 55 AD3d 734 [2008]; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d1134, 1135 [2008]; Arias v New YorkCity Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 831 [2008]). Thepresence or absence of any one factor, including the absence of a [*2]reasonable excuse, is not necessarily fatal (see Matter of Leeds v Port Washington UnionFree School Dist., 55 AD3d 734 [2008]; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d1134, 1135 [2008]).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise itsdiscretion in granting that branch of the plaintiff's cross motion which was for leave to serve a late noticeof claim. Mastro, J.P., Rivera, Fisher and Eng, JJ., concur.