| Matter of Friend v Town of W. Seneca |
| 2010 NY Slip Op 02205 [71 AD3d 1406] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Kenneth Friend, Sr., Respondent, v Town of WestSeneca, Respondent, and West Seneca Central School District,Appellant. |
—[*1] Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Sean E. Cooney of counsel), forclaimant-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredApril 24, 2009. The order granted the application of claimant for leave to serve a late notice ofclaim.
It is hereby ordered that the order so appealed from is unanimously reversed in the exerciseof discretion without costs and the application is denied.
Memorandum: Supreme Court improvidently exercised its discretion in granting claimant'sapplication for leave to serve a late notice of claim almost 14 months after the accident inquestion occurred. In determining whether to grant such leave, the court must consider, inter alia,whether the claimant has shown a reasonable excuse for the delay, whether the municipality hadactual knowledge of the facts surrounding the claim within 90 days of its accrual, and whetherthe delay would cause substantial prejudice to the municipality (see Nationwide Ins. Co. vVillage of Alexandria Bay, 299 AD2d 855 [2002]; see generally General MunicipalLaw § 50-e [5]). Here, although claimant was initially unaware of the severity of hisinjuries, he did not seek leave to serve a late notice of claim until eight months after heunderwent surgery, and he failed to offer a reasonable excuse for the postsurgery delay (see Matter of Jantzen v Half Hollow HillsCent. School Dist. No. 5, 56 AD3d 474 [2008]). Additionally, there is no indication thatrespondents had actual notice of the accident, and we conclude that they were substantiallyprejudiced by the delay because they could not promptly obtain witness statements and a medicalexamination of claimant (see Santana vWestern Regional Off-Track Betting Corp., 2 AD3d 1304 [2003], lv denied 2NY3d 704 [2004]; Lemma v Off Track Betting Corp., 272 AD2d 669, 672 [2000]).Present—Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.