Opinion
No. 79855.
2012-02-29
In the Matter of the Claim of Katy DEPRIORE, Individually and Katy Delpriore as Parent and Natural Guardian of Riley Delpriore, An InfanT, Claimant, v. TOWN OF PERRYSBURG, Town of Perrysburg Highway Department and Village of Perrysburg, Respondents.
Erie Shelton, Esq., Eden, for Claimant. Paula Eade Newcomb, Esq., Buffalo, for Respondents.
Erie Shelton, Esq., Eden, for Claimant. Paula Eade Newcomb, Esq., Buffalo, for Respondents.
LARRY M. HIMELEIN, J.
Claimant alleges that on January 27, 2011, she was driving on Route 39 towards Gowanda when a snowplow veered into her lane. The accident report confirms that the snowplow hit claimant well into her lane. Claimant further alleges that the operator of the plow apologized and indicated that the power steering on the truck had failed.
Claimant's then 10 year old daughter was taken to a nearby hospital where she was diagnosed with a broken wrist. The roof of the vehicle was removed and claimant was extracted from the vehicle and taken by ambulance to Erie County Medical Center. She alleges that she suffered pain in her neck, shoulder and back during the months after the accident.
On September 12, 2011, claimant retained a law firm that requested medical records of claimant and her daughter. On October 7, 2011, counsel sent freedom of information requests to the Town of Perrysburg and its highway department but neither of those requests has been responded to.
On December 12, 2011, plaintiff was directed by her physician to stop working. On October 24, 2011, she met with a neurosurgeon. On December 2, 2011, she underwent spinal fusion surgery. On January 18, 2012, claimant moved for leave to serve a late notice of claim.
The operator of the plow is the highway superintendent for the Town of Perrysburg. He denies telling claimant that the power steering on the snowplow failed and does not agree with the description in the police report.
A notice of claim must be filed within 90 days after the claim arises (General Municipal Law § 50–e [1][a] ). However, § 50–e (5) gives courts discretion to extend the time and sets out criteria in determining whether to grant an extension ( see Williams ex Nel Fowler v. Nassau County Med Ctr, 6 NY3d 531, 814 N.Y.S.2d 580 [2006];Cohen v. Pearl River Union Free School Dist, 51 N.Y.2d 256, 434 N.Y.S.2d 138 [1980] ).
In deciding whether to exercise that discretion, § 50–e (5) instructs that “the court shall consider, in particular [emphasis supplied], whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter.” The court must also consider “all other relevant facts and circumstances” ( Id.).
Some courts discuss three factors to be considered in making this determination:
(1) whether the claimant has a reasonable excuse for not serving the notice timely; (2) whether the municipality obtained actual notice of the facts constituting the claim within 90 days of the incident or within a reasonable time thereafter; and (3) whether the municipality is prejudiced by the late notice ( see Padovano v. Massapequa Union Free School Dist., 31 AD3d 563, 818 N.Y.S.2d 274 [2d Dept 2006]; Rush v. County of Suffolk, 35 AD3d 619, 826 N.Y.S.2d 640 [2d Dept 2006]; Conroy v. Smithtown Cent. School Dist, 3 AD3d 492, 770 N.Y.S.2d 428 [2d Dept 2004] ).
I confess that I do not read § 50–e (5) the same way. It appears that the Legislature has directed courts to consider “in particular” whether the proposed defendant obtained actual notice of the facts within 90 days or within a reasonable time thereafter. There, the court “also consider[s] all other relevant facts and circumstances and the statute then list a number of other factors. It appears that the Fourth Dept generally focused on the actual notice issue first ( see Gurnett v. Town of Wheatfield, 90 AD3d 1656, 935 N.Y.S.2d 820 [2011];Joyce v. City of Buffalo, 49 AD3d 1268, 852 N.Y.S.2d 895 [2008];Lindstrom v. Bd of Educ. of Jamestown City School Dist., 24 AD3d 1303, 805 N.Y.S.2d 908 [2005];Hale v. Webster Cent. School Dist., 12 AD3d 1052, 784 N.Y.S.2d 449 [2004] ), which appears more in line with the statutory directive.
Here, one could hardly make a better case for actual knowledge of the facts on the part of the proposed defendant-the person who allegedly caused the accident was the highway superintendent of the Town and was operating a highway department snowplow. He observed both individuals taken to hospitals and presumably was interviewed by the State Trooper on the scene. Ford v. City of Syracuse (181 A.D.2d 1026, 581 N.Y.S.2d 511 [4th Dept 1992] ), cited by defendants, is distinguishable since there, the defendants did not have actual notice of the incident.
Turning to defendants' claim of prejudice, the court is unpersuaded. The Town contends that it cannot investigate the alleged mechanical malfunction because of passage of time. However, it is the Town's vehicle that allegedly malfunctioned and has been in the Town's control since the accident. Further, the individual involved is still the highway superintendent. The court finds no “compelling showing of prejudice” (Gurnett v. Town of Wheatfield, 90 AD3d at 1656, 1657, 935 N.Y.S.2d 820 [4th Dept 2011]; see also Henderson v. Town of Van Buren, 281 A.D.2d 872, 723 N.Y.S.2d 282 [4th Dept 2001]; Love v. City of Auburn, 280 A.D.2d 982, 721 N.Y.S.2d 434 [4th Dept 2001] ).
Under the circumstances present here—actual knowledge of the facts and the lack of prejudice-the lack of a good reason for not serving the notice timely would probably be excusable ( Gurnett v. Town of Wheatfield; Nationwide Ins. Co. v. Village of Alexandria Bay, 299 ad2D 855, 750 nys2D 409 [4TH Dept 2002]; Love v. City of Auburn ). However, here the proposed plaintiff returned to work until directed by her physician to stop and she was forced to undergo surgery. That strikes the court as adequate for not filing the notice of claim timely ( see Green v. Rochester Housing Auth., 273 A.D.2d 895, 709 N.Y.S.2d 767 [4th Dept 2000]; Shane v. Cent. New York Regional Transp. Auth., 79 AD3d 1820, 914 N.Y.S.2d 810 [4th Dept 2010]; Rodriguez v. Regional Off–Track Betting Corp., 74 AD3d 1811, 902 N.Y.S.2d 477 [4th Dept 2010] ).
The motion to serve the late notice of claim is granted. Submit order on notice.