| Matter of Gelish v Dix Hills Water Dist. |
| 2009 NY Slip Op 00536 [58 AD3d 841] |
| January 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Helen Gelish, Appellant, v Dix HillsWater District et al., Respondents. |
—[*1] John J. Leo, Town Attorney, Huntington, N.Y. (Margaret L. Pezzino of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Suffolk County(Farneti, J.), dated February 7, 2008, which denied the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, the petitionis granted, and the notice of claim is deemed served.
In determining whether to grant an application for leave to serve a late notice of claim, thekey factors which the court must consider are whether the movant demonstrated a reasonableexcuse for the failure to serve a timely notice of claim, whether the municipality acquired actualnotice of the essential facts of the claim within 90 days after the claim arose or a reasonable timethereafter, and whether the delay would substantially prejudice the municipality in its defense(see General Municipal Law § 50-e [5]; Matter of Blair v Pleasantville Union Free School Dist., 52 AD3d827 [2008]; Matter of Brownstein vIncorporated Vil. of Hempstead, 52 AD3d 507, 508 [2008]; Jordan v City of New York, 41 AD3d658, 659 [2007]). The presence or absence of any one factor is not necessarily determinative(see Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d 734 [2008]; Jordan v City of New York, 41AD3d at 659). However, whether the municipality timely acquired actual notice of the essentialfacts constituting the claim is a factor which is accorded great weight (see Brownstein vIncorporated Vil. of Hempstead, 52 AD3d [*2]at 508;Matter of Dell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759 [2006]).
Under the circumstances of this case, the Supreme Court improvidently exercised itsdiscretion in denying the petition for leave to serve a late notice of claim. Even if the letter sentby the petitioner's counsel to the respondent Dix Hills Water District within 90 days after theaccident was insufficient to provide actual notice of the essential facts constituting the claim, thepetitioner served her notice of claim less than one month after the expiration of the 90-dayperiod. Thus, the respondents received actual notice of the essential facts constituting the claimwithin a reasonable time after the expiration of the 90-day period (see Bussey v City of New York, 50AD3d 938, 939 [2008]; Matter of Urgiles v New York City School Constr. Auth.,283 AD2d 434 [2001]; Matter of Harrison v New York City Hous. Auth., 188 AD2d 367[1992]). Given the minimal delay in serving the notice of claim and the lack of substantialprejudice to the respondents, the Supreme Court should have granted the petitionnotwithstanding the lack of reasonable excuse (see Matter of Molloy v City of New York, 30 AD3d 603, 604[2006]; Matter of Morales v New YorkCity Tr. Auth., 15 AD3d 580 [2005]; Matter of Urgiles v New York City SchoolConstr. Auth., 283 AD2d 434 [2001]; Matter of Irizarry v City of Yonkers, 193AD2d 746 [1993]). Mastro, J.P., Fisher, Florio, Carni and Eng, JJ., concur. [See 19 Misc3d 270.]