Duarte v. Suffolk CountyDuarte v. Suffolk County
Lead Opinion
—In а proceeding for leave to serve a late notice of claim pursuant to
Ordered that the order is affirmed, with costs.
On December 20, 1993, the infant petitioner was allegedly sexually molested by another child while both were foster children in a homе in Central Islip. The petitioner Evelyn Vargas, the mother of the victim, asserted a claim against the Commissioner of the State Deрartment of Social Services; however, this claim was dismissed by order of the Court of Claims dated September 14, 1994, on the basis of the "improper service and the untimely filing of the notice of intention and claim with the Clerk”. The present petition for leave to filе a late notice of claim against the County of Suffolk and the County Department of Social Services was then brought on or аbout December 7,1994. The Supreme Court denied this application. We affirm.
The petitioner Evelyn Vargas did not submit an affidavit in support of the petition for leave to serve a late notice of claim. Although her counsel alluded to the fact that Evelyn Vаrgas’ claim in the Court of Claims was filed "pro se” in March 1994, it is not clear exactly when she in fact consulted an attorney for the first time. This omission is all the more significant in light of the fact that the Court of Claims’ filings demonstrate Evelyn Vargas’ awareness of the general rule requiring filing of notices of claim in cases against government entities. She merely sued the wrong government entity, even though she should have known the correct entity, as illustrated by her written correspondence with the respondents and the response thereto dated January 28,1994. Considering that her incarceration did not prevent her from preparing the well-drafted papers filed in the Court of Claims, we cannot accept this circumstance as sufficient to excuse Ms. Vargas’ failure to serve or file a notice of claim in connection with the present action. In sum, we see no valid excuse for the delay and this factor, together with all the other circumstances presented, warrants the conclusion that the Supreme Court did not improvidently exercise its discretion (see, e.g., Matter of Rusiecki v Clarkstown Cent. School Dist.,
Dissenting Opinion
dissents, and votes to reverse the order appealed from, as a mаtter of discretion, with costs, to grant the application, and to deem the proposed notice of claim served, with the following memorandum: The petitioners, a young boy
In March 1994 the mother, acting pro se, brought a claim in the Court of Claims against the New York State Commissioner of Sociаl Services, asserting the essential facts of her claim. The Court of Claims dismissed the claim by order dated September 14, 1994, on the grounds, inter alia, thаt no wrongdoing was alleged against the State of New York. In so doing, the Court of Claims urged the claimant "to seek counsel”.
Thereаfter, the mother retained counsel, and counsel prepared a proposed notice of claim dated November 8, 1994. The mother’s address, as stated on the proposed notice of claim, reflected that she was still incarcerated.
On or about December 7,1994, the petitioners’ counsel made the instant application for leave to serve the latе notice of claim. In denying that application, the court noted that the delay in making the application was "not prеsumptively prejudicial”. However, the court found that there was no reasonable excuse for the delay, and that, although thе respondents had actual knowledge of the incident since its occurrence, the documents submitted did not establish that they had actual knowledge of the petitioners’ allegations that their employees were negligent.
In determining whether to grant leavе to serve a late notice of claim, the key factors to consider are (1) whether the public corporation аcquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, (2) whethеr the claimant was an infant or incapacitated, (3) whether the claimant had a reasonable excuse for the delay in serving the notice of claim, and (4) whether the municipality was prejudiced by the delay (see, Matter of Morehead v County of Westchester,
. In the instant case, there is no evidencе that the respondents suffered any prejudice from the delay, and the court specifically noted that the delay was not presumptively prejudicial. Further, the respondents acknowledged that they commenced an investigation of the incident and surrounding circumstances
It is well settled that the absence of an acceptable еxcuse for the delay is not necessarily fatal to an application for leave to serve a late notice of claim (see, Goodall v City of New York,
Under all of the circumstances, I conclude that the denial of the application for leave to serve a late notice of claim was an improvident exercise of discretion.