Lewis v. Northpole Fire Co.

Appellate Division of the Supreme Court of New York

Lewis v. Northpole Fire Co.

11 A.D.3d 911, 782 N.Y.S.2d 311, 2004 N.Y. App. Div. LEXIS 11235

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2004

StatusPublished

Cited by2 cases

This text of 11 A.D.3d 911 (Lewis v. Northpole Fire Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lewis v. Northpole Fire Co., 11 A.D.3d 911, 782 N.Y.S.2d 311, 2004 N.Y. App. Div. LEXIS 11235 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered September 3, 2003. The order denied plaintiffs’ application for leave to serve a late notice of claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion when it denied plaintiffs’ application for leave to serve a late notice of claim. The record fails to establish that defendants had timely notice of any injuries or damages claimed by plaintiffs beyond mere notice of the underlying occurrence (see Santana v Western Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [2003], lv denied 2 NY3d 704 [2004]). Additionally, plaintiffs delayed until the day before the expiration of the applicable one-year and 90-day period before seeking relief under General Municipal Law § 50-e (5) and failed to offer a reasonable excuse for the delay, notwithstanding that plaintiffs could have had knowledge through the police report of the status of the other driver as a volunteer firefighter responding to a call (see Shapiro v Town of Clarkstown, 238 AD2d 498, 499 [1997], lv denied 90 NY2d 807 [1997]). Moreover, defendants established that they would be prejudiced by plaintiffs’ delay because it prevented them from promptly obtaining witness statements [912]*912(see Santana, 2 AD3d at 1305). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.

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Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered September 3, 2003. The order denied plaintiffs’ application for leave to serve a late notice of claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion when it denied plaintiffs’ application for leave to serve a late notice of claim. The record fails to establish that defendants had timely notice of any injuries or damages claimed by plaintiffs beyond mere notice of the underlying occurrence (see Santana v Western Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [2003], lv denied 2 NY3d 704 [2004]). Additionally, plaintiffs delayed until the day before the expiration of the applicable one-year and 90-day period before seeking relief under General Municipal Law § 50-e (5) and failed to offer a reasonable excuse for the delay, notwithstanding that plaintiffs could have had knowledge through the police report of the status of the other driver as a volunteer firefighter responding to a call (see Shapiro v Town of Clarkstown, 238 AD2d 498, 499 [1997], lv denied 90 NY2d 807 [1997]). Moreover, defendants established that they would be prejudiced by plaintiffs’ delay because it prevented them from promptly obtaining witness statements [912]*912(see Santana, 2 AD3d at 1305). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.

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Bluebook (online)

11 A.D.3d 911, 782 N.Y.S.2d 311, 2004 N.Y. App. Div. LEXIS 11235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-northpole-fire-co-nyappdiv-2004.

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