| Matter of Schwindt v County of Essex |
| 2009 NY Slip Op 02275 [60 AD3d 1248] |
| March 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Frank Schwindt et al.,Respondents, v County of Essex et al., Respondents, and Essex County IndustrialDevelopment Agency et al., Appellants. |
—[*1] Brennan & White, L.L.P., Queensbury (Eric C. Schwenker of counsel), for Frank Schwindtand another, respondents.
Mercure, J. Appeal from an order of the Supreme Court (Dawson, J.), entered May 19, 2008in Essex County, which partially granted petitioners' application pursuant to General MunicipalLaw § 50-e (5) for leave to file a late notice of claim.
Petitioner Frank Schwindt allegedly sustained various injuries when he fell from the roof ofa firehouse located in the Town of Schroon, Essex County, in October 2007. Thereafter, inMarch 2008, Schwindt and his spouse, derivatively, moved by order to show cause for leave tofile a late notice of claim against respondent Schroon Lake Fire District, the equitable owner ofthe firehouse, and respondent Essex County Industrial Development Agency, the titled owner ofthe property, as well as respondents County of Essex, Town of Schroon and Schroon LakeVolunteer Fire Department. Supreme Court granted the application as to the fire district, the firedepartment and the industrial development agency (hereinafter collectively referred to as [*2]respondents), but denied the application as to the town and thecounty. This appeal by respondents ensued.
We affirm. "It is axiomatic that the decision to permit the late filing of a notice of claim isdiscretionary and involves an inquiry as to whether respondents acquired actual knowledge ofthe facts constituting the claim within 90 days or a reasonable time thereafter, whether areasonable excuse was proffered for the delay in filing a claim and whether granting a late filingwould prejudice respondents" (Matter of Crocco v Town of New Scotland, 307 AD2d516, 517 [2003] [citations omitted]; seeMatter of Dewey v Town of Colonie, 54 AD3d 1142, 1142 [2008]; Matter of Roberts v County ofRensselaer, 16 AD3d 829, 829 [2005]). No single factor is dispositive (see Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d 734, 734-735 [2008]) and, absent a clear abuse ofdiscretion, Supreme Court's determination in this regard will not be disturbed (see Matter of Hinton v New Paltz Cent.School Dist., 50 AD3d 1414, 1415 [2008]; Matter of Tara V. v County of Otsego, 12 AD3d 984, 985 [2004]).
Although petitioners' ignorance of the filing requirement plainly is not an acceptable excusefor the delay here (see Matter of Crocco v Town of New Scotland, 307 AD2d at 517), wecannot say that Supreme Court abused its discretion in concluding that respondents acquiredactual knowledge of the essential facts constituting the claim within the statutory period. At thetime of the accident, certain employees and/or representatives of respondents—includingthe fire department's chief, paramedic and director/ambulance driver, as well as a custodian forthe fire district—were at the fire house, responded to the call for assistance, and eitherobserved, treated or assisted in stabilizing Schwindt and arranging for his transport to a localhospital. In our view, the record demonstrates that respondents possessed more than ageneralized awareness that Schwindt had been injured and, indeed, "acquired actual notice of theessential facts of the claim shortly after the accident through [their representatives] sufficient toallow [them] to undertake the necessary investigation to defend a potential claim" (Matter of Isereau v Brushton-Moira SchoolDist., 6 AD3d 1004, 1006 [2004]; see Matter of Ruperti v Lake Luzerne Cent.School Dist., 208 AD2d 1146, 1147 [1994]; cf. Matter of Smith v Otselic Val. Cent.School Dist., 302 AD2d 665, 666 [2003]).
We reach a similar conclusion regarding the issue of prejudice. Simply put, the transitorynature of an accident scene, standing alone, does not prevent physical inspection or demonstratesubstantial prejudice (see Matter of Tara V. v County of Otsego, 12 AD3d at 986;Matter of Isereau v Brushton-Moira School Dist., 6 AD3d at 1007), and respondents'conclusory assertion that the mere passage of time has impaired their ability to adequatelyinvestigate petitioners' claim is unpersuasive (see Matter of Leeds v Port Washington UnionFree School Dist., 55 AD3d at 736). Inasmuch as we perceive no clear abuse of SupremeCourt's discretion, its order granting petitioners' application as to respondents is affirmed.
Cardona, P.J., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.