Daprile v. Town of Copake

• Decision Date: 22 November 2017
• Citation: 155 A.D.3d 1405,65 N.Y.S.3d 351
• Parties: John DAPRILE, Appellant, v. TOWN OF COPAKE, Respondent.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1405
65 N.Y.S.3d 351

John DAPRILE, Appellant,
v.
TOWN OF COPAKE, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 22, 2017.

65 N.Y.S.3d 353

Freeman Howard, PC, Hudson (Paul M. Freeman of counsel), for appellant.

Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric M. Kurtz of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, CLARK and PRITZKER, JJ.

ROSE, J.

155 A.D.3d 1405

Plaintiff alleges that, in 2000, defendant changed a roadway drainage system in the vicinity of his residential property and, since that time, water and debris from the drainage system have been continuously discharged onto his property. In January 2015, the foundation of plaintiff's single-family home caved in as a result of the discharge, and the home's structural integrity was compromised. In October 2015, plaintiff served a notice of claim on defendant and, shortly thereafter, commenced

155 A.D.3d 1406

this action asserting causes of action for trespass and nuisance based upon defendant's conduct dating back to 2000 and for negligence related to the January 2015 property damage. Defendant answered and asserted several affirmative defenses, including that plaintiff failed to file a timely notice of claim pursuant to General Municipal Law § 50–e. Plaintiff thereafter moved for leave to serve a late notice of claim solely as to the allegations regarding the January 2015 property damage. Supreme Court denied plaintiff's motion, and this appeal ensued.

Supreme Court is vested with broad discretion in determining whether to permit a late notice of claim (see Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262, 1262, 56 N.Y.S.3d 636 [2017] ; Matter of Jin Gak Kim v. Dormitory Auth. of the State of N.Y., 140 A.D.3d 1459, 1460, 34 N.Y.S.3d 686 [2016] ). In making its determination, however, Supreme Court is statutorily required to consider a nonexhaustive list of factors, "including whether [the defendant] had actual [knowledge] of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether [the plaintiff] offered a reasonable excuse for the delay in filing and whether [the defendant] incurred substantial prejudice as a result" (Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 A.D.3d 1048, 1049, 911 N.Y.S.2d 481 [2010] ; see General Municipal Law § 50–e [5 ]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ; Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336–1337, 921 N.Y.S.2d 696 [2011] ). Although "the presence or absence of any one of these factors is not necessarily determinative" ( Matter of Hayes v. Delaware–Chenango–Madison–Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405, 1405, 912 N.Y.S.2d 781 [2010] [internal quotation marks, brackets and citations omitted]; see Matter of Dewey v. Town of Colonie, 54 A.D.3d 1142, 1143, 863 N.Y.S.2d 849 [2008] ), "the case law makes clear that actual knowledge ‘is a factor which should be accorded great weight’ " ( Babcock v. Walton Cent. Sch. Dist....