| Matter of Billman v Town of Deerpark |
| 2010 NY Slip Op 04375 [73 AD3d 1039] |
| May 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of Denise Billman et al.,Respondents, v Town of Deerpark, Appellant. |
—[*1] The Dweck Law Firm, LLP, New York, N.Y. (Corey Stark of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Orange County (Lubell, J.),dated February 9, 2009, which, inter alia, granted the petition.
Ordered that the order is affirmed, with costs.
Factors to be considered in determining if a petitioner should be granted leave to serve a latenotice of claim are, inter alia, whether the public corporation or its attorney or its insurancecarrier acquired actual knowledge of the facts constituting the claim within the time specified inGeneral Municipal Law § 50-e (1) (a) or within a reasonable time thereafter, whether theclaimant in serving a notice of claim made an excusable error concerning the identity of thepublic corporation against which the claim should be asserted, whether the delay wouldsubstantially prejudice the public corporation in maintaining its defense on the merits, andwhether the petitioner demonstrated a reasonable excuse for the delay (see GeneralMunicipal Law § 50-e [5]; Matterof Formisano v Eastchester Union Free School Dist., 59 AD3d 543, 544 [2009]; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 146 [2008]; Hebbard v Carpenter, 37 AD3d 538 [2007]; Matter of Shapiro v County of Nassau,5 AD3d 690 [2004]).
A notice of claim dated February 18, 2008, was served upon the City of Port Jervis and thePort Jervis School District within 90 days after the accident. After discovering that the Town ofDeerpark may also be a proper party, the instant proceeding for leave to serve a late notice ofclaim upon the Town was commenced eight months after the accident. The Town acquired actualknowledge of the essential facts constituting the claim within 90 days after the accident. Itappears on the face of the record that the Town's attorneys, who are also Corporation Counsel forthe City of Port Jervis, were involved in defending the identical claims asserted against the Cityof Port Jervis (see Matter of Tumm vTown of Eastchester, 8 AD3d 581 [2004]; Matter of Shapiro v County of Nassau, 5 AD3d 690 [2004];Matter of Battle v City of New York, 261 AD2d 614 [1999]; Matter of Bollerman vNew York City School Constr. Auth., 247 AD2d 469 [1998]; Matter of Alvarenga vFinlay, 225 AD2d 617 [1996]). Thus, the petitioners met their initial burden of showing alack of prejudice (cf. Williams v NassauCounty Med. Ctr., 6 NY3d 531, 539 [2006]; Matter of [*2]Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at152; Jordan v City of New York, 41AD3d 658 [2007]; Matter ofVasquez v City of Newburgh, 35 AD3d 621, 623 [2006]). The Town failed todemonstrate that it was prejudiced by reason of the petitioners' delay in commencing thisproceeding (see Jordan v City of New York, 41 AD3d at 660; Gibbs v City of New York, 22 AD3d717, 719 [2005]).
While the petitioners failed to explain the two-month delay between discovering their errorconcerning the identity of the proper governmental entity to be served and commencing theproceeding (see Matter of Shapiro v County of Nassau, 5 AD3d at 691; Lemma v OffTrack Betting Corp., 272 AD2d 669, 670 [2000]; Matter of Duarte v SuffolkCounty, 230 AD2d 851, 852 [1996]), under the circumstances of this case, the absence of anexcuse for the delay in filing this petition was not fatal (see Matter of Anderson v City ofNew York, 288 AD2d 310 [2001]; Matter of Affleck v County of Nassau, 240 AD2d569 [1997]; Matter of Alvarenga v Finlay, 225 AD2d 617 [1996]). Accordingly, theSupreme Court providently exercised its discretion in granting the petition.
It cannot be said at this stage of the proceedings that the action against the Town is patentlywithout merit (see Burke v Incorporated Vil. of Hempstead, 156 AD2d 630 [1989]).Rivera, J.P., Florio, Dickerson, Chambers and Lott, JJ., concur.