Opinion
No. K1–2015–1462.
03-30-2016
Christian McGOWAN, Claimant/Plaintiff, v. VILLAGE OF LAKEWOOD & County of Chautauqua, Respondents/Defendants.
Burgett & Robbins, LLP, Attorneys for Claimant/Plaintiff, Lori L. Thierfeldt, Esq., of Counsel. Webster & Szani, LLP, Attorneys for Respondent/Defendant County of Chautauqua, Ryan G. Smith, Esq., of Counsel.
Burgett & Robbins, LLP, Attorneys for Claimant/Plaintiff, Lori L. Thierfeldt, Esq., of Counsel.
Webster & Szani, LLP, Attorneys for Respondent/Defendant County of Chautauqua, Ryan G. Smith, Esq., of Counsel.
FRANK A. SEDITA III, J.
Claimant, who seeks to recover for personal injuries allegedly suffered as the result of a biking accident, requests leave to serve late notice of claim against respondents.
On April 27, 2015, respondent County of Chautauqua contracted with the Suit–Kote Corporation to perform road work on West Summit St. in the Village of Lakewood, NY. Pursuant to their agreement, Suit–Kote was responsible for erecting construction site warning signs and it agreed to defend, indemnify and hold the county harmless for any liability or claims made against it relative to the construction project.
Claimant alleges that on July 15, 2015, while peddling in the vicinity of the construction site, and in an effort to avoid a pedestrian, he collided with a sudden and un-noticed change in road condition (i.e. a two-inch elevation), which launched him over the handlebars and onto a freshly grated road surface, face-first. Claimant allegedly suffered abrasions and bruising as a result.
Claimant purportedly met with counsel about a week later. A Notice of Claim was apparently filed sometime thereafter against the Town of Busti, N.Y. (the municipality adjacent to the Village of Lakewood). It is unclear when claimant filed that notice of claim. It is also unclear whether claimant has brought a lawsuit against Suit–Kote.
On December 3, 2015, claimant filed an Application for Leave to Serve a Late Notice of Claim against respondent Village of Lakewood. On February 2, 2016, claimant filed a Second Application for Leave to Serve a Late Notice of Claim, this time naming the Town of Busti, the Village of Lakewood and, for the first time, the County of Chautauqua, as respondents. Both notices misidentify the precise location of the accident.
Respondent County of Chautauqua became aware of the accident when it was served with the Second Application for Leave to Serve a Late Notice of Claim; i.e. a little over 200 days after the accident occurred, and vigorously opposes the relief requested in the second application. The Village of Lakewood, by contrast, has responded to neither application.
Pursuant to General Municipal Law § 50–e (1)(a), a municipal defendant in a tort action must be provided with notice, in the form of a notice of claim, within 90 days of the incident's occurrence. However, pursuant to General Municipal Law § 50–e (5), the court, in its discretion, may extend the time to serve such notice.
The key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay; whether respondent acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter; and, whether the delay would substantially prejudice respondent (Folmar v. Lewiston–Porter Central School District, 85 AD3d 1644, 1645 ). While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance (Lawthorne v. City of New York, 133 AD3d 856, 857 ). Actual knowledge of the essential facts of a claim requires knowledge of the injuries or damages claimed by a claimant, rather than mere notice of the underlying occurrence (Candino v. Starpoint Central School Dist. 115 AD3d 1170, 1171–1172 ; aff'd 24 NY3d 925 [2014] ).
Regarding excusable delay, claimant's counsel cites pre-trial preparation on another legal matter as the principal reason why the December 3, 2015 application (against the Village of Lakewood only) was “only” 51 days late; counsel sets forth no excuse, reasonable or otherwise, as to why the February 2, 2016 application (against the Village of Lakewood and the County of Chautauqua) was filed 112 days late. Regarding actual knowledge, an associate of claimant's counsel orally argued that the County of Chautauqua acquired sufficient knowledge when, on December 7, 2015, a Suit–Kote employee advised a county employee that an accident had occurred at the construction site.
Claimant offers no reasonable excuse for the 112 day delay in filing a late notice of claim against the County of Chautauqua. Moreover, the county had no actual knowledge of the essential facts constituting the claim until claimant's counsel filed it in an inexcusably late fashion. Although the county's arguments regarding prejudice are less than compelling, the application as it relates to the County of Chautauqua is denied inasmuch as there is no reasonable excuse for the delay and the county lacked timely knowledge of the facts constituting the claim (Brown v. City of Buffalo, 100 AD3d 1039, 1141). Claimant's application as it relates to the Village of Lakewood is granted inasmuch as it has ignored both applications.
The foregoing shall constitute the Order of this Court.