Wetzel Services Corp. v. Town of Amherst

207 A.D.2d 965, 616 N.Y.S.2d 832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1994
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court did not abuse its discretion in granting plaintiff’s application for leave to serve a late notice of claim (see, General Municipal Law § 50-e [5]). The court is vested with broad discretion to grant or deny the application (see, Matter of Rotoli v Town of Gaines, 184 AD2d 1085; Downey v Macedon Ctr. Volunteer Fire Dept., 179 AD2d 999; Barnes v County of Onondaga, 103 AD2d 624, 629, affd 65 NY2d 664; Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, 426, affd 51 NY2d 957).

Plaintiff applied for permission to serve a notice of claim within the one year and 90-day limitation period (see, General Municipal Law § 50-i), albeit on the last day possible. Although plaintiff in its motion papers offered no excuse for failing to file a notice of claim within the statutory 90-day period (General Municipal Law § 50-e [1]; see, Baehre v County of Erie, 94 AD2d 943), it made a persuasive showing that defendant Town "acquired actual knowledge of the essential facts constituting the claim” (General Municipal Law § 50-e [5] ) because one of its police officers was involved in the accident and the police promptly investigated the accident and prepared a written report. Moreover, defendants have made no particularized or persuasive showing that the delay caused them substantial prejudice (see, Matter of Rotoli v Town of Gaines, supra, at 1086; Downey v Macedon Ctr. Volunteer Fire Dept., supra, at 1000). (Appeal from Order of Supreme Court, Erie County, Cosgrove, J.—Notice of Claim.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.