| Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist. |
| 2011 NY Slip Op 09132 [90 AD3d 761] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of St. Paul Guardian Insurance Corporation,Appellant, v Pocatello Fire District, Respondent. |
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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Orange County(Bartlett, J.), dated March 11, 2011, which denied the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is granted.
On May 31, 2010, a fire truck owned by the petitioner's insured was struck by a fire truckowned by the Pocatello Fire District (hereinafter the respondent). The petitioner, as subrogee,sought to recover damages for injury to property sustained by its insured as a result of thecollision, and filed the instant petition pursuant to General Municipal Law § 50-e (5) forleave to serve a late notice of claim upon the respondent.
The Supreme Court improvidently exercised its discretion in denying the petition for leave toserve a late notice of claim. The respondent acquired actual knowledge of the essential factsconstituting the claim within 90 days of the accident, since its employees were directly involvedin the accident, and the police accident report was sufficient to provide actual knowledge of thefacts constituting the claim (see General Municipal Law § 50-e [5]; Matter ofContinental Ins. Co. v City of Rye, 257 AD2d 573, 574 [1999]). The police accident reportidentified the employees involved in the accident, and gave reasonable notice from which itcould be inferred that a potentially actionable wrong had been committed by the respondent andthat the insured's fire truck sustained extensive damage as a result of the respondent's allegednegligence (see Matter of Boskin v NewYork City Tr. Auth., 44 AD3d 851, 852 [2007]; Matter of Continental Ins. Co. vCity of Rye, 257 AD2d at 574; Matter of DeAngelis v County of Dutchess, 159AD2d 706 [1990]; Wolf v State of New York, 140 AD2d 692 [1988]). Furthermore, thepetitioner met its initial burden of demonstrating a lack of substantial prejudice to the respondentshould service of the late notice of claim be allowed (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 152 [2008]; Matter of Boskin v New York City Tr. Auth., 44 AD3d at852; Matter of DeAngelis v County of Dutchess, 159 AD2d 706 [1990]). The respondentdid not assert that it would be prejudiced by the delay.[*2]
Finally, the absence of a reasonable excuse for the delaydoes not bar the granting of the petition for leave to serve a late notice of claim where, as here,there is actual knowledge and an absence of prejudice (see Matter of Whittaker v New York City Bd. of Educ., 71 AD3d776, 778 [2010]; Matter of Leeds vPort Washington Union Free School Dist., 55 AD3d 734, 735 [2008]; Matter of Rivera-Guallpa v County ofNassau, 40 AD3d 1001, 1002 [2007]).
Accordingly, the Supreme Court should have granted the petition for leave to serve a latenotice of claim. Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.