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In re Dubowy v. City of N.Y

Appellate Division of the Supreme Court of New York, First Department
May 29, 2003
305 A.D.2d 320 (N.Y. App. Div. 2003)

Opinion

771N

May 29, 2003.

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky, J.), entered on or about September 19, 2001, denying petitioner's application to deem her notice of claim timely, nunc pro tunc, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the application granted, and the matter remanded to the hearing court for further proceedings.

Arnold E. DiJoseph, III, for petitioner-appellant.

Norman Corenthal, for respondent-respondent.

Before: Buckley, P.J., Nardelli, Andrias, Friedman, Gonzalez, JJ.


The purpose underlying the notice of claim requirement embodied in General Municipal Law, section 50-e, is to protect the municipality from unfounded claims and to ensure that it has an adequate opportunity "to explore the merits of the claim while information is still readily available" (Teresta v. City of New York, 304 N.Y. 440, 443; see also Camacho v. City of New York, 187 A.D.2d 262, 263). The statute, however, is not intended to "operate as a device to defeat the rights of persons with legitimate claims" (Matter of Annis v. New York City Tr. Auth., 108 A.D.2d 643, 644).

General Municipal Law, section 50-e(5), which confers upon the court the discretion to determine whether to grant or deny leave to serve a late notice of claim (see Matter of Valestil v. City of New York, 295 A.D.2d 619, lv denied 98 N.Y.2d 615; Matter of Turner v. City of New York, 203 A.D.2d 294, 295), is remedial in nature and should, therefore, be liberally construed (Camacho v. City of New York, supra at 263; Matter of Santana v. City of New York, 183 A.D.2d 665). The key factors which the court must consider in determining if leave should be granted are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense (Matter of Lodati v. City of New York, 303 A.D.2d 406, 755 N.Y.S.2d 853; Matter of Ruiz v. New York City Hous. Auth., 272 A.D.2d 402, 403; Braverman v. City of White Plains, 115 A.D.2d 689, 690). Moreover, the presence or absence of any one factor is not determinative (Chattergoon v. New York City Hous. Auth., 197 A.D.2d 397, 398; Matter of Morris v. County of Suffolk, 88 A.D.2d 956, 957, affd 58 N.Y.2d 767), and the absence of a reasonable excuse is not fatal (Weiss v. City of New York, 237 A.D.2d 212, 213; Chattergoon v. New York City Hous. Auth., supra at 398; Matter of Gerzel v. City of New York, 117 A.D.2d 549, 551).

In the matter at bar, respondent City of New York, in our view, acquired knowledge of the essential facts within a reasonable time after the accident, and failed to demonstrate how the relatively short delay herein resulted in any prejudice to its defense. Further, petitioner's physical incapacity, which she cites as the root cause of her delay, is bolstered by the submission of medical records, and is an acceptable excuse for the delay (see Matter of Silva v. City of New York, 246 A.D.2d 465, 465-466).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

In re Dubowy v. City of N.Y

Appellate Division of the Supreme Court of New York, First Department
May 29, 2003
305 A.D.2d 320 (N.Y. App. Div. 2003)
Case details for

In re Dubowy v. City of N.Y

Case Details

Full title:IN RE EVE DUBOWY, Petitioner-Appellant, v. THE CITY OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 29, 2003

Citations

305 A.D.2d 320 (N.Y. App. Div. 2003)
759 N.Y.S.2d 325

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