Opinion
2002-11432.
Decided June 7, 2004.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Nassau County (Phelan, J.), dated November 15, 2002, which granted the petition.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak and David B. Goldin of counsel), for appellants.
Pegalis Erickson, LLC, Lake Success, N.Y. (Annamarie Bondi-Stoddard and Gary M. Nielsen of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, STEPHEN G. CRANE, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the petition is denied, and the proceeding is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim more than nine years after the alleged malpractice which resulted in the infant's injuries. In determining whether to grant leave to serve a late notice of claim, General Municipal Law § 50-e(5) instructs the court to consider certain factors, including whether (1) an infant is involved, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the municipality in maintaining its defense on the merits ( see General Municipal Law § 50-e; Matter of Cotten v. County of Nassau, 307 A.D.2d 965; Matter of Brown v. County of Westchester, 293 A.D.2d 748; Matter of Matarrese v. New York City Health Hosps. Corp., 215 A.D.2d 7, 9). The question of whether to grant an application for leave to serve a late notice of claim is committed to the sound discretion of the court ( see Moise v. County of Nassau, 234 A.D.2d 275, 276).
While infancy will automatically toll the one year and 90-day statute of limitations for commencing an action against a municipality ( see General Municipal Law § 50-i; CPLR 208; Henry v. City of New York, 94 N.Y.2d 275), the infancy of an injured petitioner, standing alone, does not compel the granting of an application for leave to serve a late notice of claim ( see Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 266; Matter of Brown v. County of Westchester, supra; Matter of Knightner v. City of New York, 269 A.D.2d 397).
Despite the petitioners' conclusory contention to the contrary, the delay of more than nine years in moving for leave to serve a late notice of claim was not attributable to the infancy of their son ( see Matter of Cotten v. County of Nassau, supra; Matter of Brown v. County of Westchester, supra at 748-749; Rabanar v. City of Yonkers, 290 A.D.2d 428, 429; Matter of Cuffee v. City of New York, 255 A.D.2d 440, 441; Matter of Matarrese v. New York City Health Hosps. Corp., supra at 9-10). Moreover, the fact that the petitioners allegedly were unaware of the possibility of commencing a lawsuit is not a reasonable excuse for the failure to serve a timely notice of claim ( see Matter of Cotten v. County of Nassau, supra at 966; Matter of D'Anjou v. New York City Health Hosps. Corp., 196 A.D.2d 818, 820).
In addition, the petitioners originally retained counsel in 1995 regarding the injuries sustained by the infant. The petitioners' former counsel thereafter requested and received from the appellants all of the relevant medical records. The petitioners offered no explanation for the six-year gap between their former counsel's receipt of the medical records and the retention of current counsel in 2001. Thus, the petitioners failed to demonstrate any excuse for the delay in moving for leave to serve the late notice of claim ( see Matter of Cotten v. County of Nassau, supra at 965-966; Matter of Brown v. County of Westchester, supra at 748-749; Matter of Cuffee v. City of New York, supra).
Finally, the petitioners failed to establish that the appellants would not be substantially prejudiced in maintaining their defense on the merits as a result of the more than nine-year delay in moving for leave to serve the notice of claim ( see Moise v. County of Nassau, supra; Matter of Matarrese v. New York City Health and Hosps. Corp., supra at 10-11).
SANTUCCI, J.P., SMITH, CRANE and FISHER, JJ., concur.