| Matter of Joy v County of Suffolk |
| 2011 NY Slip Op 08593 [89 AD3d 1025] |
| November 22, 2011 |
| Appellate Division, Second Department |
| In the Matter of Elisca N. Joy, Appellant, v County of Suffolk etal., Respondent. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Marcia J. Lynn of counsel), for respondentCounty of Suffolk. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondent Townof Smithtown.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim upon the County of Suffolk and the Town of Smithtown, the petitioner appeals from anorder of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated October 20, 2010, whichdismissed the proceeding as time-barred.
Ordered that the order is reversed, on the law, with one bill of costs, and the petition is granted.
A proceeding for leave to serve a late notice of claim upon a municipality must be commencedwithin one year and 90 days after the happening of the event upon which the claim is based(see General Municipal Law § 50-i [1]). The petitioner timely commenced thisproceeding on August 23, 2010, a date within one year and 90 days after the date of the subjectaccident, when she obtained an index number and filed the notice of petition and petition with theSuffolk County Clerk (see CPLR 304 [a], [c]; 306-a [a]; Matter of One Beacon Ins. Co./CGU Ins. Co. v Daly, 7 AD3d 717,718 [2004]; Matter of Allstate Indem. Co. vMartinez, 4 AD3d 422 [2004]; cf. Matter of Mendon Ponds Neighborhood Assn. vDehm, 98 NY2d 745, 747 [2002]). Since the proceeding was timely commenced, the SupremeCourt had the authority to grant leave to serve a late notice of claim (see General MunicipalLaw § 50-e [5]; Pierson v City of New York, 56 NY2d 950, 954 [1982]), and shouldhave considered the merits of the petition. Although we recognize that the question of whether to granta request for leave to serve a late notice of claim generally rests, in the first instance, within the sounddiscretion of the Supreme Court (see Matter of Butler v Town of Ramapo, 242 AD2d 570[1997]), since the record before us is fully developed, we will address the merits of the petition in theinterest [*2]of judicial economy.
Among the factors to be considered by a court in determining whether leave to serve a late noticeof claim should be granted are whether the municipality acquired actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose or within a reasonable time thereafter;whether the delay would substantially prejudice the municipality in maintaining its defense; and whetherthe claimant had a reasonable excuse for the failure to serve a timely notice of claim (seeGeneral Municipal Law § 50-e [5]; Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2009]; Matter of Felice v Eastport/South Manor Cent.School Dist., 50 AD3d 138 [2008]). While the presence or the absence of any one of thefactors is not necessarily determinative (seeMatter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134 [2008]; Jordan v City of New York, 41 AD3d658, 659 [2007]), whether the municipality had actual knowledge of the essential facts constitutingthe claim is of great importance (see Matterof Gonzalez v City of New York, 60 AD3d 1058, 1059 [2009]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 147).
Here, the petitioner demonstrated that the County of Suffolk and the Town of Smithtown(hereinafter together the respondents) acquired timely knowledge of the essential facts underlying herclaim by way of the timely notices of claim and copies of the police accident report served upon themby Tatyana Yusupova, a passenger in the same vehicle in which the petitioner was a passenger at thetime of accident, who also allegedly sustained injuries in the accident (see Jordan v City of NewYork, 41 AD3d at 660; Matter of Alvarenga v Finlay, 225 AD2d 617 [1996]). Since therespondents acquired timely knowledge of the essential facts constituting the petitioner's claim, thepetitioner met her initial burden of showing a lack of prejudice (see Matter of Allende v City of New York, 69 AD3d 931, 933 [2010];Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152; Jordan vCity of New York, 41 AD3d at 660). The respondents' conclusory assertions of prejudice, basedsolely on the petitioner's delay in serving the notice of claim, were insufficient to rebut the petitioner'sshowing (see Jordan v City of New York, 41 AD3d at 660; Gibbs v City of New York, 22 AD3d717 [2005]; Matter of Andrew T.B. vBrewster Cent. School Dist., 18 AD3d 745, 748 [2005]).
While the petitioner's excuse for her failure to serve a timely notice of claim is not reasonable(see Matter of Baglivi v Town of Southold, 301 AD2d 597, 598 [2003]), where there is actualnotice and absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave toserve a late notice of claim (see Matter ofBrownstein v Incorporated Vil. of Hempstead, 52 AD3d 507, 510 [2008]; Matter of Rivera-Guallpa v County ofNassau, 40 AD3d 1001, 1002 [2007]; Gibbs v City of New York, 22 AD3d at720). Accordingly, the petition should have been granted. Rivera, J.P., Florio, Eng, Hall and Cohen,JJ., concur.