Thom v. Village of Wappingers Falls

131 A.D.2d 855, 517 N.Y.S.2d 214, 1987 N.Y. App. Div. LEXIS 48290

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1987
• Status: Published

Opinion

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to file late notices of claim, the appeal is from a judgment of the Supreme Court, Dutchess County (Hillery, J.), entered April 10, 1986, which granted the application.

Ordered that the judgment is reversed, on the law and in the exercise of discretion, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the application is denied.

The claimant, who offered virtually no excuse for the delay in filing notices of claim, asserts only the existence of a "distinct possibility” that one or more of the appellants acquired actual knowledge of the accident within 90 days of its occurrence, which knowledge each of the appellants denies. Moreover, because the accident occurred at an active construction site, reconstruction of the circumstances existing at the time of the accident is all but impossible (see, Kravitz v County of Rockland, 112 AD2d 352, affd 67 NY2d 685). Under the totality of the circumstances, the court of first instance abused its discretion in granting the application. Eiber, J. P., Kunzeman, Sullivan and Harwood, JJ., concur.