McBee v. County of Onondaga

Nov 17, 2006
Versions:34 A.D.3d 1360
826 N.Y.S.2d 531

Appeal from an order of the Supreme Court, Onondaga County (Edward D. Carni, J.), entered December 1, 2005 in a personal injury action. The order granted plaintiff‘s application for leave to serve a late notice of claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Supreme Court properly exercised its broad discretion in granting plaintiff‘s application pursuant to General Municipal Law § 50-e (5) seeking leave to serve a late notice of claim (see Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). Contrary to defendant‘s contention, plaintiff demonstrated a reasonable excuse for her delay (see Matter of Greene v Rochester Hous. Auth., 273 AD2d 895 [2000]). Further, although defendant did not have actual notice of the facts underlying the claim within 90 days following plaintiff‘s accident, defendant failed to establish that it was prejudiced by the lack of timely notice (see Matter of Haeg v County of Suffolk, 30 AD3d 519, 520 [2006]; Matter of McHugh v City of New York, 293 AD2d 478 [2002]). According to plaintiff, defendant was negligent in its design of its recreation trail in Onondaga Lake Park, and “[t]here is no evidence in the record that any design changes were made subsequent to the subject accident which would impede [defendant‘s] ability to investigate [plaintiff‘s] claim” (McHugh, 293 AD2d at 478; see Haeg, 30 AD3d at 520-521; see also Matter of Bitetto v City of Yonkers, 13 AD3d 367, 368 [2004]; Greene, 273 AD2d 895 [2000]). Present—Scudder, J.P., Kehoe, Martoche and Green, JJ.