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Matter of Farrell v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Mar 29, 1993
191 A.D.2d 698 (N.Y. App. Div. 1993)

Opinion

March 29, 1993

Appeal from the Supreme Court, Richmond County (Leone, J.).


Ordered that the order is affirmed, with costs.

It is well settled that in determining an application for leave to serve a late notice of claim, the court must consider all relevant factors, including whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, Carbone v. Town of Brookhaven, 176 A.D.2d 778; Matter of Harris v. Dormitory Auth., 168 A.D.2d 560; Matter of Charles v. New York City Health Hosps. Corp., 166 A.D.2d 526). The question of whether to grant an application for leave to serve a late notice of claim is left to the sound discretion of the court (see, Ortega v. New York City Hous. Auth., 167 A.D.2d 337; Matter of Gruber v. City of New York, 156 A.D.2d 450). In the present case, the petitioner's submissions, which included the affidavit of an orthopedic surgeon, indicated that the petitioner sustained fractures to both of his feet as a result of a fall from a flatbed truck, and that his injuries confined him to his home for over two months (see, Matter of Charles v. New York City Health Hosps. Corp., supra). Moreover, additional delay in serving a notice of claim was caused by the petitioner's mistaken belief that the construction firm which employed him at the time of his accident was acting as general contractor for the State of New York on a project to rebuild a bridge and roadway in Staten Island. Error concerning the identity of the governmental entity to be served can be excused provided that a prompt application for relief is made after discovery of the error (see, Matter of Morris v. County of Suffolk, 58 N.Y.2d 767; Matter of Harris v. Dormitory Auth., 168 A.D.2d 560, supra). Here the petitioner moved for leave to file a late notice of claim as soon as he learned that his employer was in fact acting as general contractor for the City of New York. Moreover, the City did not deny the petitioner's allegation that it received actual notice of the facts underlying the claim through records maintained by his employer (see, Matter of Andrews v. New York City Hous. Auth., 190 A.D.2d 732; cf., Washington v. City of New York, 72 N.Y.2d 881), and its conclusory claim of prejudice is unpersuasive. Under these circumstances, we cannot say that the Supreme Court improvidently exercised its discretion in granting the petitioner's application. Thompson, J.P., Rosenblatt, Eiber and Miller, JJ., concur.


Summaries of

Matter of Farrell v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Mar 29, 1993
191 A.D.2d 698 (N.Y. App. Div. 1993)
Case details for

Matter of Farrell v. City of New York

Case Details

Full title:In the Matter of MARTIN FARRELL, Respondent, v. CITY OF NEW YORK, Appellant

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

Date published: Mar 29, 1993

Citations

191 A.D.2d 698 (N.Y. App. Div. 1993)
595 N.Y.S.2d 531

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