Opinion
2014-08-20
In the Matter of Armando LOPEZ, etc., respondent, v. COUNTY OF NASSAU, appellant.
Carnell T. Foskey, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for appellant. Finz & Finz, P.C., Mineola, N.Y. (Jay L. Feigenbaum of counsel), for respondent.
Carnell T. Foskey, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for appellant. Finz & Finz, P.C., Mineola, N.Y. (Jay L. Feigenbaum of counsel), for respondent.
In a proceeding, inter alia, pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodward, J.), entered October 5, 2012, as granted that branch of the petition which was for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served on behalf of the claimant Antonio Lopez.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court ( see Matter of McLean v. Valley Stream Union Free School Dist. 30, 48 A.D.3d 571, 571–572, 852 N.Y.S.2d 227;Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623, 826 N.Y.S.2d 648). Among the factors to be considered on an application for leave to serve a late notice of claim are whether the claimant is “physically incapacitated,” whether the movant has demonstrated a reasonable excuse for failing to timely serve a notice of claim, whether the municipality “acquired actual knowledge of the essential facts constituting the claim” within 90 days after the claim “arose or a reasonable time thereafter,” and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (General Municipal Law § 50–e[5]; see Claud v. West Babylon Union Free Sch. Dist., 110 A.D.3d 663, 972 N.Y.S.2d 611;Matter of Ceselka v. City of New York, 101 A.D.3d 994, 995, 957 N.Y.S.2d 210;Williams v. Nassau County Med. Ctr., 13 A.D.3d 363, 364, 786 N.Y.S.2d 207,affd. 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154). Neither the presence nor the absence of any one factor is determinative ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81;Gibbs v. City of New York, 22 A.D.3d 717, 719, 804 N.Y.S.2d 393).
In this case, the extremely serious and incapacitating injuries that the claimant suffered in the underlying car accident reasonably excused the minimal delay in seeking leave to serve a late notice of claim against the County of Nassau ( see General Municipal Law § 50–e[5]; Matter of Savelli v. City of New York, 104 A.D.2d 943, 944, 480 N.Y.S.2d 561). The record further demonstrates that the County acquired actual knowledge of the facts underlying the claim within the 90–day statutory period or within a reasonable time thereafter ( see Morano v. County of Dutchess, 160 A.D.2d 690, 692, 553 N.Y.S.2d 779;Fahey v. County of Nassau, 111 A.D.2d 214, 217, 489 N.Y.S.2d 249). Finally, under the circumstances of this case, the County was not prejudiced by the delay in serving the notice of claim ( see Matter of Mounsey v. City of New York, 68 A.D.3d 998, 999–1000, 891 N.Y.S.2d 440;Matter of Cox v. City of Peekskill, 297 A.D.2d 735, 736, 747 N.Y.S.2d 547;Rosenblatt v. City of New York, 160 A.D.2d 927, 928, 554 N.Y.S.2d 800;see also McBee v. County of Onondaga, 34 A.D.3d 1360, 826 N.Y.S.2d 531).
The County's remaining contention is without merit.
Accordingly, the Supreme Court did not improvidently exercise its discretion in granting that branch of the petitioner's motion which was for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served. RIVERA, J.P., HALL, SGROI and MALTESE, JJ., concur.