From Casetext: Smarter Legal Research

Matter of Wilson v. City of Binghamton

Appellate Division of the Supreme Court of New York, Third Department
Mar 5, 1998
248 A.D.2d 780 (N.Y. App. Div. 1998)

Opinion

March 5, 1998

Appeal from the the Supreme Court (Coutant, J.).


Petitioner Diane Wilson (hereinafter petitioner) claims that she sustained injuries on April 28, 1995 when she fell from a jungle gym owned by respondent sustaining multiple fractures of her right leg. On May 14, 1996, following several weeks of hospitalization and several months of confinement to her home in a gradually improving nonambulatory state, petitioner, and her husband derivatively, sought leave to file a late notice of claim against respondent based upon the alleged negligent design and maintenance of the jungle gym. Supreme Court denied the application and petitioners appeal.

In exercising its broad discretion in determining an application pursuant to General Municipal Law § 50-e for leave to file a late notice of claim, Supreme Court may properly consider whether respondent acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether petitioners offered a reasonable excuse for the delay in filing the application and whether granting the application would substantially prejudice respondent ( see, General Municipal Law § 50-e; Matter of Doe v. Madrid-Waddington Cent. School Dist., 232 A.D.2d 922).

Here, the police incident report that petitioner filed and respondent received merely stated that petitioner sustained leg injuries when she tripped while stepping off the jungle gym. Inasmuch as the report did not connect the incident with any negligence on the part of respondent or otherwise reveal the nature of the claim, it was insufficient to furnish actual knowledge of the essential facts of the claim ( see, Matter of Johnston v. Town of Putnam Val. Police Dept., 167 A.D.2d 612; Caselli v. City of New York, 105 A.D.2d 251). Moreover, having concluded from the report that the accident was not related to any negligence on its part, respondent did not investigate the accident site. Besides lack of actual notice, respondent's evidence disclosed that it was prejudiced by the delay since the jungle gym was not in the same condition as it was on the date of petitioner's accident. In view of these factors we cannot say that Supreme Court abused its discretion in denying petitioner's application.

Mikoll, J. P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.


Summaries of

Matter of Wilson v. City of Binghamton

Appellate Division of the Supreme Court of New York, Third Department
Mar 5, 1998
248 A.D.2d 780 (N.Y. App. Div. 1998)
Case details for

Matter of Wilson v. City of Binghamton

Case Details

Full title:In the Matter of DIANE WILSON et al., Appellants, v. CITY OF BINGHAMTON…

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

Date published: Mar 5, 1998

Citations

248 A.D.2d 780 (N.Y. App. Div. 1998)
669 N.Y.S.2d 731

Citing Cases

Salas v. Town of Lake Luzerne

Recognizing that the purpose of a notice of claim is to "afford the municipality an opportunity to…

Lacey v. Village of Lake Placid

Fundamentally, a trial court has broad discretion to determine whether to grant permission to file a late…