Chadsey v. Erie County Industrial Development Agency

195 A.D.2d 1031, 602 N.Y.S.2d 575, 1993 N.Y. App. Div. LEXIS 7841

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1993
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Respondent appeals from an order that granted claimants’ motion for leave to serve a late notice of claim. Claimants alleged that the claim accrued on October 4, 1991. They sought permission to serve a late notice of claim on June 29, 1992.

Pursuant to General Municipal Law § 50-e (5) and applicable case law, the court has broad discretion to extend the time to serve a notice of claim so long as the motion is made within the time available for the commencement of an action (see, Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 633; Downey v Macedon Ctr. Volunteer Fire Dept., 179 AD2d 999; Barnes v County of Onondaga, 103 AD2d 624, 629, affd 65 NY2d 664). The presence or absence of any one factor enumerated in the statute is not determinative of the motion (see, Downey v Macedón Ctr. Volunteer Fire Dept., supra, at 1000). Additionally, the statutory factors are "directive rather than exclusive” (Barnes v County of Onondaga, supra, at 629).

Upon our consideration of the relevant factors, we conclude that the court did not abuse its discretion in granting claimants’ motion. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Late Notice of Claim.) Present—Den-man, P. J., Pine, Lawton, Boomer and Davis, JJ.