Shapey v. East Rockaway Union Free School District

277 A.D.2d 441, 715 N.Y.S.2d 893, 2000 N.Y. App. Div. LEXIS 12274

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated December 21, 1999, which denied her motion for leave to serve a late notice of claim.

Ordered that the order is affirmed, with costs.

In determining whether to grant a motion for leave to serve a late notice of claim, a court must consider (1) whether the movant has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) whether the delay would substantially prejudice the public corporation in maintaining a defense on the merits (see, Matter of Kittredge v New York City Hous. Auth., 275 AD2d 746; Matter of Guiliano v Town of Oyster Bay, 244 AD2d 408). Here, the Supreme Court properly denied the motion, as the plaintiff failed to demonstrate either a reasonable excuse for her delay, actual knowledge of the claim on the part of the defendant, or the absence of prejudice to the defendant. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.