| Matter of Coplon v Town of Eastchester |
| 2011 NY Slip Op 02388 [82 AD3d 1095] |
| March 22, 2011 |
| Appellate Division, Second Department |
| In the Matter of Samuel R. Coplon et al.,Appellants, v Town of Eastchester, Respondent. |
—[*1] Cerussi & Spring, White Plains, N.Y. (Richard W. Ashnault of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim on behalf of the decedent, the petitioners appeal from an order of the SupremeCourt, Westchester County (Colabella, J.), entered December 17, 2009, which denied thepetition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is granted.
On January 14, 2009, the decedent allegedly was injured when she slipped and fell on ice thatwas formed from water running out of a drain pipe onto a parking lot owned by the respondent,Town of Eastchester. About three months after the appointment of the estate's representatives,the petitioners sought leave to serve a late notice of claim on behalf of the decedent.
General Municipal Law § 50-e (5) requires the court to consider certain factors indetermining whether to grant leave to serve a late notice of claim, including whether (1) thepetitioner demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) thepublic corporation acquired actual knowledge of the facts constituting the claim within 90 daysfrom its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudicethe public corporation in maintaining a defense on the merits (see Matter of Wright v City of New York, 66 AD3d 1037 [2009];Matter of Peterson v New York CityDept. of Envtl. Protection, 66 AD3d 1027 [2009]; Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 883[2009]).
Here, the Town acquired actual knowledge of the facts constituting the claim within 90 daysafter the incident. The incident report prepared by the Town's Police Department on the date ofthe accident detailed the nature and the alleged cause of the accident, and indicated that theTown's Highway Department responded to correct the icy condition (see Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 141 [2008]; Matter of Mounsey v City of NewYork, 68 AD3d 998, 999 [2009]; [*2]Matter of LaMay v County ofOswego, 49 AD3d 1351 [2008]; Bazer v Town of Walworth, 277 AD2d 994[2000]; Matter of Morgan v New York City Hous. Auth., 181 AD2d 890, 891 [1992];Caselli v City of New York, 105 AD2d 251, 256 [1984]). Furthermore, the petitionersdemonstrated that there was no prejudice to the Town by the four-month delay in making thisapplication. The condition of the drain pipe was nontransitory and uninfluenced by the delay inmaking this application (see Matter ofShapiro v County of Nassau, 5 AD3d 690, 691 [2004]). While the petitioners failed tosupport their assertion that the decedent's failure to serve a timely notice of claim was due to herhospitalization (see Matter ofPapayannakos v Levittown Mem. Special Educ. Ctr., 38 AD3d 902 [2007]; Matter of Welch v New York City Hous.Auth., 7 AD3d 805, 806 [2004]; Robertson v New York City Hous. Auth., 237AD2d 501, 502 [1997]), where, as here, there was actual notice and an absence of prejudice, thefailure to establish a reasonable excuse does not bar the granting of leave to serve a late notice ofclaim (see Matter of Billman v Town ofDeerpark, 73 AD3d 1039 [2010]; Matter of Mounsey v City of New York, 68AD3d at 1000; Matter of Speed v A.Holly Patterson Extended Care Facility, 10 AD3d 400, 402 [2004]).
Accordingly, the Supreme Court improvidently exercised its discretion in denying thepetition for leave to serve a late a notice of claim on behalf of the decedent. Rivera, J.P., Florio,Dickerson, Hall and Roman, JJ., concur.