Fuentes v. County of Nassau

Feb 7, 2005
Versions:15 A.D.3d 346
788 N.Y.S.2d 865
2005 N.Y. App. Div. LEXIS 1415

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (DeMaro, J.), dated December 1, 2003, which granted the defendants’ motion to dismiss the complaint, and denied that branch of their cross motion which was, in effect, for leave to serve a late notice of claim.

Ordered that the order is affirmed, with costs.

To commence a tort action against a municipality, a claimant must serve a notice of claim within 90 days of the alleged injury (see General Municipal Law § 50-e [1] [a]). Pursuant to General Municipal Law § 50-e (5), the court may, in its discretion, extend the time to serve a notice of claim (see Matter of Hicks v City of New York, 8 AD3d 566 [2004]). In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 13 AD3d 363 [2004]; Matter of Brown v County of Westchester, 293 AD2d 748 [2002]; Matter of Fierro v City of New York, 271 AD2d 608, 609 [2000]; Matter of Gaffney v Town of Hempstead, 226 AD2d 721, 722 [1996]; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9 [1995]).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ cross motion which was, in effect, for leave to serve a late notice of claim upon the defendants.

The plaintiffs’ remaining contention is without merit. H. Miller, J.P., Luciano, Rivera and Lifson, JJ., concur.