Flynn v. Town of Oyster Bay

Dec 7, 1998
Versions:256 A.D.2d 341
681 N.Y.S.2d 337

—In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), the Town of Oyster Bay appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), dated September 10, 1997, which granted the application.

Ordered that the order is affirmed, with costs.

“Error concerning the identity of the governmental entity to be served can be excused provided that a prompt application for relief is made after discovery of the error (see, Matter of Morris v County of Suffolk, 58 NY2d 767; Matter of Harris v Dormitory Auth., 168 AD2d 560)” (Matter of Farrell v City of New York, 191 AD2d 698, 699).

After discovering that her timely notice of claim had been served upon the wrong entity, the petitioner promptly sought leave to serve a late claim upon the proper party, the Town of Oyster Bay. Moreover, the notice of claim was served on the Town within a reasonable time after the 90-day period in which to do so had expired, and the Town did not demonstrate that it would be prejudiced by permitting the late notice. Under these circumstances, the court did not improvidently exercise its discretion in granting the petitioner’s application (see, General Municipal Law § 50-e [5]; Matter of Finneran v City of New York, 228 AD2d 596; Gallino v Village of Shoreham, 222 AD2d 506; Rudisel v City of New York, 217 AD2d 702).

The appellant’s remaining contentions are without merit. Mangano, P. J., Thompson, Santucci and McGinity, JJ., concur.