Matter of Kiernan v Suffolk County Dept. of Pub. Works

[*1] Matter of Kiernan v Suffolk County Dept. of Pub. Works 2006 NY Slip Op 51597(U) [12 Misc 3d 1196(A)] Decided on August 7, 2006 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2006
Supreme Court, Suffolk County

In the Matter of Kevin Kiernan, Petitioner,

against

Suffolk County Department of Public Works, Respondent.



2006-10608



Law Offices of Dino J. Domina, P.C., Attorneys for Petitioner, 775 Park Avenue, Suite 200-11, Huntington, New York 11743. Christine Malafi, Suffolk County Attorney, Attorneys for Respondent, H. Lee Dennison Building, 100 Veterans Memorial Highway, PO Box 6100, Hauppauge, New York 11788-0099

Jeffrey Arlen Spinner, J.

ORDERED, that this application of Petitioner is hereby granted in all respects.

Petitioner moves this Court for an Order, pursuant to General Municipal Law § 50-e(5), permitting Petitioner to file a late Notice of Claim.

This action arises out of an incident which occurred when Petitioner fell on a job site known as the Port Jefferson Waste Water Treatment Plant, located at 500 Beach Street, Port Jefferson, New York, said premises allegedly being owned by Respondent, while Petitioner was engaged in his employment for a contractor at the premises.

When seeking recovery for damages or injury against a municipality, a notice of claim must be served within 90 days of the date the cause of action accrued, but the law is clear that the Court has broad discretion to grant leave to serve a late notice of claim as long as service is made within the applicable statute of limitations (Rochenberg v. Nassau County Medical Center, 112 AD2d 150, 490 NYS2d 838 [2nd Dept 1985]). General Municipal Law § 50-e clearly gives this [*2]Court broad discretion and permits it to consider all relevant factors and circumstances when determining whether to extend a claimant's time to file a Notice of Claim (Baldeo v. City of New York, 127 AD2d 809, 511 NYS2d 937 [2nd Dept 1987]; Sanders v. New York City Housing Authority, 170 AD2d 607, 566 NYS2d 381 [2nd Dept 1991]; Harris v. Dormitory Authority of the State of New York, 168 AD2d 560, 562 NYS2d 781 [2nd Dept 1990]).

When considering the granting of leave to file a late Notice of Claim, the three factors to be considered are:

1.Whether the municipality acquired actual knowledge of the essential facts of the claim within the statutory 90-day period;

2.Whether Petitioner had a reasonable excuse for the delay;

3.Whether the municipality will be substantially prejudiced by the delay;

D'Erasamo v. City of Yonkers, 271 AD2d 393, 706 NYS2d 343 [2nd Dept 2000]; Fierro v. City of New York, 271 AD2d 608, 706 NYS2d 451 [2nd Dept 2000]; Andrew TB v. Brewster Central School District, 18 AD3d 745, 795 NYS2d 718 [2nd Dept 2005]; Limniatis v. Greenburgh Central School District No. 7, 2005 NY Slip Op 8289, 23 AD3d 353, 803 NYS2d 438 [2nd Dept 2005]).

Plaintiff asserts that the excuse for his late filing of a Notice of Claim was due to his inability to determine the public entity that owned the premises where the accident occurred, causing him to seek permission to file a claim that was essentially 20 days late. In a strikingly similar case, the Appellate Division, 2nd Department, issued an opinion affirming the decision of the lower Court, which granted leave to serve a late Notice of Claim, holding that "...petitioner's error concerning the identity of the public corporation upon which the notice of claim was to be served was excusable...". The Court further found that the fact Petitioner filed his Notice of Claim 26 days beyond the expiration of the 90 day period for such filing failed to substantiate Respondent therein's conclusory assertion of prejudice caused by the delay (National Surety Corporation v. Town of Greenburgh, 266 SD2d 550, 699 NYS2d 128 {266 AD2d 550} [2nd Dept 1999]).

Irrespective of the reasonableness of Plaintiff's excuse, the Appellate Division 2nd Department, held that the absence of a reasonable excuse is not fatal to the application for leave to serve a late notice of claim (Shapiro v. County of Nassau, 5 AD3d 690, 774 NYS2d 753 [2nd Dept 2004]; Affleck v County of Nassau, 240 AD2d 569, 570 [1997]; see Morgan v New York City Hous. Auth., 181 AD2d 890, 891 [1992]; Montalto v Town of Harrison, 151 AD2d 652, 653 [1989]). Furthermore, the 2nd Department overturned a lower Court ruling, holding that, "While the reasonableness of the excuse for the delay proffered by the petitioner in this case may be open to question, the absence of a reasonable excuse is not necessarily fatal" (Urgiles v. New York City School Const. Authority, 283 AD2d 434, 723 NYS2d 876 [2nd Dept 2001]; see, Matter of Alvarenga v Finlay, 225 AD2d 617; Morgan, supra ; Kurz v New York City Health & Hosps. Corp., 174 AD2d 671). Still further, the Appellate Division, 2nd Department has affirmed the decision of the lower Court, granting leave to serve a late Notice of Claim, wherein the lower Court held that the absence of a reasonable excuse is not necessarily fatal to Petitioner's application, Petitioner's excuse being he was unaware of the Notice of Claim requirement (Bollerman v. New York City School Construction Authority, 247 AD2d 469, 668 NYS2d 709 [2nd Dept 1998]). [*3]

The Urgiles decision, supra , also stated that Respondent acquired actual knowledge of the facts of the claim therein within a reasonable time after the expiration of the 90-day period, and Respondent failed to demonstrate that it suffered any prejudice by the short delay. The Appellate Division, 4th Department, affirmed a lower Court ruling granting leave to file a late Notice of Claim, stating that "...there is no evidence in the record that the witnesses who were not interviewed at the time of the accident are presently unavailable or that those witnesses are now unable to recall the events (Gilbert v. Eden Central School District, 306 AD2d 925, 762 NYS2d 463 [4th Dept 2003]).

In the instant case at bar, Respondents have not demonstrated that Petitioners excuse is not reasonable, nor that Respondent would suffer any prejudice, and further, they have not set forth an allegation that they had no knowledge of the incident within 90 days of its occurrence, apparently fully aware that a claim by a governmental agency that it failed to implement and enforce an accident report procedure for private contractors engaged in work on public property would support a conclusion of poor management systems, rather than controverting Petitioner's request for relief.

The issue of whether this Court had jurisdiction to decide this matter, based on process of service, was obviously extinguished by the proof submitted by Petitioner, requiring no further comment.

For all the reasons stated herein above, it is, therefore,

ORDERED, that this application of Petitioner for an Order, pursuant to General Municipal Law § 50-e(5), permitting Petitioner to file a late Notice of Claim, is hereby granted in all respects

Dated:Riverhead, New York

August 7, 2006______________________

HON. JEFFREY ARLEN SPINNER, J.S.C