Opinion
2003-03546.
Decided March 22, 2004.
In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the appeal is from an order of the Supreme Court, Nassau County (Franco, J.), dated February 25, 2003, which granted the application.
Ohrenstein Brown, LLP, New York, N.Y. (Carla Varriale of counsel), for appellant.
Mitchell N. Kay, New York, N.Y. (Eric S. Goldstein of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting the petitioner's application for leave to serve a late notice of claim. In exercising discretion upon such an application the court is required by General Municipal Law § 50-e(5) to consider, among other factors not here relevant:
"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 * * * * whether the claimant failed to serve a timely notice of claim by reason of [her] justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier * * * and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits." (emphasis added)
The petitioner notified the insurance carrier for the appellant County of Nassau of the essential facts constituting the claim within the prescribed 90-day period. It does not avail the County to argue that it received no such notice when it makes no effort to dispute that its insurer received such notice.
In addition to satisfying the criterion of General Municipal Law § 50-e(5), the petitioner demonstrated that her attorney justifiably relied on settlement representations made by David Morse Associates (hereinafter Morse) on behalf of American Speciality Insurance Services, Inc., the insurer of the appellant and its tenant at the Nassau Veterans Memorial Coliseum ( see Giretti v. Greenlawn Fire Dept., 80 A.D.2d 883, 884). Morse expressed an interest in "attempting to amicably resolve this matter."
Moreover, there is no conceivable prejudice to the County in maintaining its defense on the merits. The absence of a handrail at the location of the petitioner's fall represents a continuing condition uninfluenced by the delay, and the presence of debris on the steps is so transitory a condition that it would not have remained the same throughout the 90-day period limited for a timely notice of claim ( see General Municipal Law § 50-e[a]).
The County correctly observes that the petitioner failed to explain the two-month delay between discovering that the County is the owner of the Nassau Veterans Memorial Coliseum and then moving for leave to serve a late notice of claim. However, "the absence of a reasonable excuse is not fatal to [her] application" ( Matter of Affleck v. County of Nassau, 240 A.D.2d 569, 570; see Matter of Morgan v. New York City Hous. Auth., 181 A.D.2d 890, 891; Montalto v. Town of Harrison, 151 A.D.2d 652, 653). Forgiving the absence of such excuse is particularly appropriate here given that the petitioner satisfied three statutory criteria and that this further tardiness in no way prejudiced the County ( cf. Matter of Nieves v. Girimonte, 309 A.D.2d 753, 754; Matter of D'Andrea v. City of Glen Cove Pub. Schools, 143 A.D.2d 747, 748).
The County's remaining contentions are without merit.
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.