Benjamin v. Warren County
| Decision Date | 12 March 1987 |
| Parties | Nancy BENJAMIN et al., Appellants, v. COUNTY OF WARREN et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Seth Eben Shapiro, Corinth, for appellants.
Alio, Moran & Pronti (Richard T. Moran, of counsel), Clifton Park, for respondents.
Before MAHONEY, P.J., and MAIN, WEISS, MIKOLL and KANE, JJ.
Appeals (1) from an order of the Supreme Court at Special Term (Brown, J.), entered June 13, 1985 in Warren County, which denied plaintiffs' motion for leave to file a late notice of claim, (2) from an order of said court (Mercure, J.), entered August 16, 1985 in Warren County, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, and (3) from the judgment entered thereon.
Plaintiff Nancy Benjamin (hereinafter Benjamin) was employed by defendant Warren County at Westmount Health Facility until she was fired on March 8, 1984 by her superiors, defendant James E. Shoemaker, administrator of the facility, and defendant Carol Parsons, the facility's executive housekeeper. Benjamin's subsequent claim for unemployment insurance benefits was contested by the County. She was, however, awarded benefits. Benjamin then commenced a CPLR article 78 proceeding against the County seeking reinstatement and back pay. That proceeding was dismissed. Benjamin and her husband then commenced the instant action on behalf of themselves and their infant daughter.
It is Benjamin's claim that, during her employment at the facility, she consumed medication for gastrointestinal distress she suffered, believing it was caused by defendants' actions. She alleges that she discontinued taking the medicine when she later discovered she was pregnant. Benjamin alleges in the complaint that her infant daughter was born with permanent congenital heart disease. Plaintiffs brought the instant suit charging that defendants' infliction of emotional distress upon Benjamin made them responsible for her daughter's heart disease. Plaintiffs next moved for leave to file a late notice of claim against the County. Special Term denied the motion and granted defendants' subsequent motion to dismiss the entire action. Plaintiffs now appeal from both of these decisions.
As amended in 1976, General Municipal Law § 50-e(5) specifies the relevant factors to be considered by a court in deciding whether to grant an extension of the 90-day time limit to file a notice of claim set out in General Municipal Law § 50-e(1)(a). Factors relevant to the circumstances of this case are whether the County acquired "actual knowledge of the essential facts constituting the claim" within the 90 days allowed, or a reasonable time thereafter, and whether the delay "substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law § 50-e[5] ). The decision to permit late service of a notice of claim lies within the discretion of the court (Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189). The one seeking to file late has the burden of establishing that the public corporation acquired actual knowledge of the essential facts within a reasonable time (Morgan v. City of Elmira, 115 A.D.2d 885, 886, 496 N.Y.S.2d 578, appeal dismissed 67 N.Y.2d 905, 501 N.Y.S.2d 814, 492 N.E.2d 1230). Absent an abuse of discretion, Special Term's decision will be upheld (see, Edwards v. Town of Delaware, 115 A.D.2d 205, 206-207, 495 N.Y.S.2d 289).
Examination of the instant record reveals that Special Term did not abuse its discretion in denying plaintiffs' application for leave with respect to Benjamin and her husband. There is no allegation that defendants were ever informed that Benjamin was suffering physical ailments as a result of their conduct, or that she was taking medicine, until the summons and complaint were served sometime after the infant's birth. It appears, therefore, that the court could reasonably infer that defendants would be prejudiced in preparation of a defense.
However, review of Special Term's denial of the application for leave to file a late notice of claim on behalf of the infant daughter leads to a different conclusion. The infant could not have been expected to file, or to have had filed for her, a notice of claim arising from the events occurring prior to...
To continue reading
Request your trial
-
Donald E by Pauline E v. Gloversville Enlarged School Dist.
...v. Town of Brookhaven, 133 A.D.2d 803, 520 N.Y.S.2d 185). The instant case is factually distinguishable from Benjamin v. County of Warren, 128 A.D.2d 973, 513 N.Y.S.2d 288, lv. denied, 71 N.Y.2d 806, 530 N.Y.S.2d 109, 525 N.E.2d 754. There, where the notice of claim was for events arising p......
-
Stenowich v. Colonie Indus. Development Agency
...Court did not abuse its broad discretion in refusing to permit the late filing of a notice of claim (see, Benjamin v. County of Warren, 128 A.D.2d 973, 974, 513 N.Y.S.2d 288, lv. denied 71 N.Y.2d 806, 530 N.Y.S.2d 109, 525 N.E.2d 754; Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, ......
-
Kressner v. Town of Malta
...N.E.2d 521). While the discretion of Supreme Court will generally be upheld absent demonstrated abuse (see, Benjamin v. County of Warren, 128 A.D.2d 973, 974, 513 N.Y.S.2d 288, lv. denied 71 N.Y.2d 806, 530 N.Y.S.2d 109, 525 N.E.2d 754), here petitioner offered nothing other than her bare r......
-
Benjamin v. Warren County
...109 71 N.Y.2d 806, 525 N.E.2d 754 Benjamin (Nancy) v. County of Warren NO. 420 COURT OF APPEALS OF NEW YORK MAY 31, 1988 128 A.D.2d 973, 513 N.Y.S.2d 288 MOTION FOR LEAVE TO Denied. ...