Hilton v. Town of Richland

216 A.D.2d 921, 629 N.Y.S.2d 130, 1995 N.Y. App. Div. LEXIS 7251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1995
• Status: Published

Opinions

Order affirmed without costs. Memorandum: Supreme Court properly denied the petition seeking permission to file a late notice of claim. The three key factors in determining whether leave to file a late notice of claim should be granted are whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e [1]) or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense (Carbone v Town of Brookhaven, 176 AD2d 778). While no one factor is dispositive (Matter of Esposito v Carmel Cent. School Dist., 187 AD2d 854, 855), we have noted that "[kjnowledge of the facts constituting the claim is the factor that 'should be accorded great weight ’ ” (Kalenda v Buffalo Mun. Hous. Auth., 203 AD2d 937). Although an excuse for the delay was shown, the other two factors clearly support the court’s decision. The claim accrued on July 3,1993, and the assertion of the Town that it had no notice until it was served with this petition on September 23, 1994 is uncontroverted. That delay deprived the Town of the opportunity "to timely and effectively investigate” the incident (Matter of Albanese v Village of Floral Park, 128 AD2d 611, 613), and thus the Town would be "substantially prejudiced” in maintaining its defense (Carbone v Town of Brookhaven, supra, at 778).

All concur except Balio and Boehm, JJ., who dissent and vote to reverse in the following Memorandum.