Gonzalez v. County of Nassau

57 A.D.3d 480, 867 N.Y.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

In exercising its discretion in determining whether to permit late service of a notice of claim, a court must consider all relevant circumstances, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e; Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734 [2008]; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 831 [2008]). The presence or absence of any one factor, including the absence of a reasonable excuse, is not necessarily fatal (see Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734 [2008]; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]).

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiffs cross motion which was for leave to serve a late notice of claim. Mastro, J.P., Rivera, Fisher and Eng, JJ., concur.