Fast v. County of Broome

• Decision Date: 29 June 1989
• Citation: 151 A.D.2d 930,543 N.Y.S.2d 203
• Parties: In the Matter of Barbara FAST, Respondent, v. COUNTY OF BROOME et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 203

543 N.Y.S.2d 203

151 A.D.2d 930

In the Matter of Barbara FAST, Respondent, v. COUNTY OF BROOME et al., Appellants.

Supreme Court, Appellate Division Third Department.

June 29, 1989.

John E. Murray (Philomena M. Stamato, of counsel), Department of Law, Binghamton, for appellants.

G. Peter Van Zandt, Binghamton, for respondent.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

Appeals (1) from an order of the Supreme Court (Fischer, J.), entered April 12, 1988 in Broome County, which granted petitioner's application pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, and (2) from an order of said court, entered July 5, 1988 in Broome County, which, inter alia, deemed service of said late notice of claim to be served as of March 15, 1988, nunc pro tunc.

This action stems from injuries received by petitioner when she fell down the steps of a public bus owned and operated by respondent Broome County while she was exiting the vehicle on March 16, 1987. A claims adjuster for the County contacted petitioner within a week, had her fill out a no-fault claim and apparently also obtained authorization from petitioner to obtain her medical records. Prior to May 1987, petitioner retained counsel to commence a suit against the County and its transit company. Petitioner's counsel has sworn to the fact that he dictated the notice to a member of his staff and directed service of a notice of claim pursuant to General Municipal Law § 50-e. However, it was never typed and served.

Upon learning that the notice requirements in petitioner's claim had not been met, petitioner's counsel made a motion in March 1988 for an order granting leave to serve a late notice of claim. This motion was granted and the order of the court permitted petitioner to serve formal notice upon both the County Clerk and County Attorney within 30 days of April 8, 1988, the date the order was signed. Petitioner served her summons and complaint on May 20, 1988 and the County Attorney's office advised petitioner's counsel that notice of the claim was not properly served or filed. Petitioner's counsel then had the notice re-served on both the County Attorney and the County Clerk on May 27, 1988.

Respondents thereafter moved to dismiss the complaint on the basis that notice was not served within 30 days of the court's order. Supreme Court denied respondents' motion and amended its prior order, nunc pro tunc, holding that the notice of claim "shall be deemed served as of March 15, 1988, the date upon which the Notice of Motion containing the notice of claim was served upon [the] County Attorney". Respondents appeal from this order as well as from the April 8, 1988 order permitting the late notice of claim to be filed.

We affirm. This court is vested with broad discretion in considering whether service of a late notice of claim should be permitted (see, Matter of Strevell v. South Colonie School Dist., 144 A.D.2d 733, 734, 535 N.Y.S.2d 147; Matter of Delzotto v. County of Warren, 137 A.D.2d 950, 951, 525 N.Y.S.2d 373). Among the factors to be determined on such a motion are whether the public corporation had actual knowledge of the essential facts constituting the claim and whether the delay in serving the notice of claim would substantially prejudice the public corporation in preparing its defense (id.; see, General Municipal Law...