Mirano v. County of Wyoming

Appellate Division of the Supreme Court of New York

Mirano v. County of Wyoming

28 A.D.3d 1112, 813 N.Y.S.2d 322

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

DecidedApril 28, 2006

StatusPublished

This text of 28 A.D.3d 1112 (Mirano v. County of Wyoming) 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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Mirano v. County of Wyoming, 28 A.D.3d 1112, 813 N.Y.S.2d 322 (N.Y. Ct. App. 2006).

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Opinion

Appeal from an order of the Supreme Court, Wyoming County (Michael F. Griffith, A.J.), entered December 28, 2004. The order granted claimant’s 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 in granting claimant’s application for leave to serve a late notice of claim upon respondents (see Matter of Trusso v Board of Educ. of Jamestown City School Dist., 24 AD3d 1302 [2005]; Matter of Gilbert v Eden Cent. School Dist., 306 AD2d 925 [2003]). “Even assuming, arguendo, that claimant[ ] failed to provide a reasonable excuse for [her] delay, we conclude that [her] failure to do so is not fatal [inasmuch as] actual notice [of the essential facts constituting the claim contemporaneously with the accrual of the claim] was had [by respondents or their agents] and there is no compelling showing of prejudice to respondents]” (Gilbert, 306 AD2d at 926 [internal quotation marks omitted]; see Trusso, 24 AD3d 1302 [2005]; Matter of Lindstrom v Board of Educ. of Jamestown City School Dist., 24 AD3d 1303 [2005]; Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). Present— Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Hayes, JJ.

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Appeal from an order of the Supreme Court, Wyoming County (Michael F. Griffith, A.J.), entered December 28, 2004. The order granted claimant’s 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 in granting claimant’s application for leave to serve a late notice of claim upon respondents (see Matter of Trusso v Board of Educ. of Jamestown City School Dist., 24 AD3d 1302 [2005]; Matter of Gilbert v Eden Cent. School Dist., 306 AD2d 925 [2003]). “Even assuming, arguendo, that claimant[ ] failed to provide a reasonable excuse for [her] delay, we conclude that [her] failure to do so is not fatal [inasmuch as] actual notice [of the essential facts constituting the claim contemporaneously with the accrual of the claim] was had [by respondents or their agents] and there is no compelling showing of prejudice to respondents]” (Gilbert, 306 AD2d at 926 [internal quotation marks omitted]; see Trusso, 24 AD3d 1302 [2005]; Matter of Lindstrom v Board of Educ. of Jamestown City School Dist., 24 AD3d 1303 [2005]; Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). Present— Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Hayes, JJ.

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28 A.D.3d 1112, 813 N.Y.S.2d 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mirano-v-county-of-wyoming-nyappdiv-2006.

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