Opinion
2011-12-30
Tracy GURNETT, Plaintiff–Appellant, v. TOWN OF WHEATFIELD, Robert Cliffe, Larry Helwig, Arthur Gerbec, Gilbert Doucet, Kenneth Retzlaff and Robert O'Toole, Defendants–Respondents.
Spadafora & Verrastro, LLP, Buffalo (Joseph C. Todoro of Counsel), for Plaintiff–Appellant. Petrone & Petrone, P.C., Williamsville (James H. Cosgriff, III, of Counsel), for Defendants–Respondents.
Spadafora & Verrastro, LLP, Buffalo (Joseph C. Todoro of Counsel), for Plaintiff–Appellant. Petrone & Petrone, P.C., Williamsville (James H. Cosgriff, III, of Counsel), for Defendants–Respondents.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
MEMORANDUM:
Plaintiff, an employee of defendant Town of Wheatfield, initially served a notice of claim alleging that she had been subjected to, inter alia, harassment, retaliation and a hostile work environment beginning on “December 4, 2009 and continuing thereafter.” Following the hearing conducted pursuant to General Municipal Law § 50–h, plaintiff sought leave to amend the notice of claim to reflect that the conduct complained of began on May 29, 2009, and she also sought leave to serve the amended notice of claim as a late notice of claim. Supreme Court denied plaintiff's application based upon her failure to offer a reasonable excuse for failing to serve a timely notice of claim with respect to the incidents beginning on May 29, 2009.
“Although courts are vested with broad discretion in determining whether to grant an application for leave to serve a late notice of claim,” we conclude that the court abused its discretion in denying plaintiff's application ( Hale v. Webster Cent. School Dist., 12 A.D.3d 1052, 1052, 784 N.Y.S.2d 449). Plaintiff established that defendants received actual notice of the first incidents upon which the claim is based in a timely manner in June 2009, and “defendants have made no particularized or persuasive showing that the delay caused them substantial prejudice” ( Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965, 616 N.Y.S.2d 832; see Matter of Hall v. Madison–Oneida County Bd. of Coop. Educ. Servs., 66 A.D.3d 1434, 885 N.Y.S.2d 690). Thus, plaintiff's failure to offer a reasonable excuse for the delay in filing a notice of claim with respect to the incidents commencing May 29, 2009 “ ‘is not fatal where, as here, actual notice was had and there is no compelling showing of prejudice to’ [defendants]” ( Matter of Henderson v. Town of Van Buren, 281 A.D.2d 872, 873, 723 N.Y.S.2d 282). We therefore reverse the order and grant plaintiff's application upon condition that the proposed amended notice of claim is served within 20 days of the date of entry of the order of this Court.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is granted upon condition that the proposed amended notice of claim is served within 20 days of the date of entry of the order of this Court.