Heather v. County of Rensselaer

88 A.D.2d 718, 451 N.Y.S.2d 283, 1982 N.Y. App. Div. LEXIS 16958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1982
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Klein, J.), entered September 15, 1981 in Rensselaer County, which denied claimant’s motion for leave to file a late notice of claim pursuant to subdivision 5 of section 50-e of the General Municipal Law. Claimant was injured in a two-car accident occurring on Edwards Road in Rensselaer County. Claimant contends that the county negligently maintained the road thereby contributing to his injuries. Subdivision 1 of section 50-e of the General Municipal Law requires that a claimant file a notice of claim against a public corporation within 90 days after the claim arises. Leave to file a late notice of claim may be granted pursuant to subdivision 5 of this section. Claimant filed a late notice of claim on July 15,1981 some 10 months after the accident. The petition for relief offers no excuse for the inordinate delay except claimant’s two-month physical disability following the accident and his mistaken impression that an application after 90 days would be to no avail. Under such circumstances, Special Term did not abuse its discretion in denying claimant’s motion to file a late notice of claim. The court is vested by the statute with broad discretion in granting leave to file a late claim. In exercising its discretion, the court must consider the relevant facts of the case including whether the public corporation was able to fully investigate the claim. Where, as here, claimant’s late application is obviously deleterious to the county’s ability to investigate the accident and defend itself, the denial of the motion was within the broad powers of the court. Order affirmed, without costs. Kane, J. P., Main, Mikoll, Weiss and Levine, JJ., concur.