Opinion
11-22-2017
John DAPRILE, Appellant, v. TOWN OF COPAKE, Respondent.
Freeman Howard, PC, Hudson (Paul M. Freeman of counsel), for appellant. Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric M. Kurtz of counsel), for respondent.
Freeman Howard, PC, Hudson (Paul M. Freeman of counsel), for appellant.
Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric M. Kurtz of counsel), for respondent.
Before: McCARTHY, J.P., ROSE, CLARK and PRITZKER, JJ.
ROSE, J.Plaintiff alleges that, in 2000, defendant changed a roadway drainage system in the vicinity of his residential property and, since that time, water and debris from the drainage system have been continuously discharged onto his property. In January 2015, the foundation of plaintiff's single-family home caved in as a result of the discharge, and the home's structural integrity was compromised. In October 2015, plaintiff served a notice of claim on defendant and, shortly thereafter, commenced this action asserting causes of action for trespass and nuisance based upon defendant's conduct dating back to 2000 and for negligence related to the January 2015 property damage. Defendant answered and asserted several affirmative defenses, including that plaintiff failed to file a timely notice of claim pursuant to General Municipal Law § 50–e. Plaintiff thereafter moved for leave to serve a late notice of claim solely as to the allegations regarding the January 2015 property damage. Supreme Court denied plaintiff's motion, and this appeal ensued.
Supreme Court is vested with broad discretion in determining whether to permit a late notice of claim (see Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262, 1262, 56 N.Y.S.3d 636 [2017] ; Matter of Jin Gak Kim v. Dormitory Auth. of the State of N.Y., 140 A.D.3d 1459, 1460, 34 N.Y.S.3d 686 [2016] ). In making its determination, however, Supreme Court is statutorily required to consider a nonexhaustive list of factors, "including whether [the defendant] had actual [knowledge] of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether [the plaintiff] offered a reasonable excuse for the delay in filing and whether [the defendant] incurred substantial prejudice as a result" (Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 A.D.3d 1048, 1049, 911 N.Y.S.2d 481 [2010] ; see General Municipal Law § 50–e [5 ]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ; Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336–1337, 921 N.Y.S.2d 696 [2011] ). Although "the presence or absence of any one of these factors is not necessarily determinative" ( Matter of Hayes v. Delaware–Chenango–Madison–Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405, 1405, 912 N.Y.S.2d 781 [2010] [internal quotation marks, brackets and citations omitted]; see Matter of Dewey v. Town of Colonie, 54 A.D.3d 1142, 1143, 863 N.Y.S.2d 849 [2008] ), "the case law makes clear that actual knowledge ‘is a factor which should be accorded great weight’ " ( Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d 1061, 1063, 989 N.Y.S.2d 172 [2014], quoting Matter of Stenowich v. Colonie Indus. Dev. Agency, 151 A.D.2d 894, 895, 542 N.Y.S.2d 863 [1989], lv. denied 74 N.Y.2d 615, 549 N.Y.S.2d 960, 549 N.E.2d 151 [1989] ; see Matter of City of New York v. County of Nassau, 146 A.D.3d 948, 950, 46 N.Y.S.3d 155 [2017] ).
Initially, we agree with plaintiff that, although Supreme Court acknowledged the relevant statutory factors to be considered, its ultimate determination did not include an analysis of actual knowledge or substantial prejudice. Instead, Supreme Court focused exclusively on plaintiff's failure to provide a reasonable excuse for the delay and the "questionable" merit of plaintiff's case. While a reasonable excuse for the delay is a statutory factor (see General Municipal Law § 50–e [5 ] ), it is well settled that " ‘the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual [knowledge] was had and there is no compelling showing of prejudice’ " (Matter of Lanphere v. County of Washington, 301 A.D.2d 936, 938, 754 N.Y.S.2d 125 [2003] [ellipsis omitted], quoting Matter of Drozdzal v. Rensselaer City School Dist., 277 A.D.2d 645, 646, 716 N.Y.S.2d 435 [2000] ; see Matter of Cruz v. City of New York, 149 A.D.3d 835, 837, 52 N.Y.S.3d 380 [2017] ). Similarly, although Supreme Court was permitted to consider the merits of the underlying claim, leave should only be denied on this basis when the claim is " ‘patently meritless' " ( Miller v. County of Sullivan, 36 A.D.3d 994, 996, 827 N.Y.S.2d 750 [2007], quoting Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 [2004] ), which was not established here.
Upon our consideration of all of the pertinent statutory factors, we find that, although plaintiff did not provide a reasonable excuse for his delay, he adequately set forth proof of actual knowledge and lack of substantial prejudice such that his motion should have been granted. As to actual knowledge, plaintiff established that, beginning in May 2015—which was approximately one month after the expiration of the 90–day statutory period—and continuing through June 2015, plaintiff notified defendant's highway superintendent and town supervisor on multiple occasions about the flooding due to the drainage system, the damage caused to his home and the large-scale construction project that was underway to repair the damage. During this same time period, the highway superintendent inspected the property, as well as the drainage system, and discussed with plaintiff possible options to redirect the discharge. In light of this uncontroverted proof, we find that defendant had actual knowledge of the essential facts of the January 2015 property damage within a reasonable time after the expiration of the 90–day statutory period (see General Municipal Law § 50–e [5 ]; see generally Matter of Edwards v. Town of Delaware, 115 A.D.2d 205, 206, 495 N.Y.S.2d 289 [1985] ).
As to substantial prejudice, the only prejudice alleged is that defendant was deprived of the opportunity to investigate plaintiff's claim before plaintiff made the repairs to the home. Plaintiff's proof established, however, that although he began repairing the home immediately after the damage was sustained, the highway superintendent inspected the property while the repairs to the home were still ongoing. Accordingly, we find that defendant will not be substantially prejudiced by permitting plaintiff to serve a late notice of claim (see Matter of Lanphere v. County of Washington, 301 A.D.2d at 939, 754 N.Y.S.2d 125 ; see generally
Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 465–466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; compare Matter of Bell v. City of New York, 100 A.D.3d 990, 991, 954 N.Y.S.2d 229 [2012] ; Matter of Petersen v. Susquehanna Val. Cent. School Dist., 57 A.D.3d 1332, 1334, 870 N.Y.S.2d 155 [2008] ), and that Supreme Court abused its discretion by denying plaintiff's motion. The parties' remaining contentions have been examined and determined to be lacking in merit.ORDERED that the order is reversed, on the law, with costs, and motion granted.
McCARTHY, J.P., CLARK and PRITZKER, JJ., concur.