Fenton v. County of Dutchess

• Decision Date: 20 March 1989
• Parties: Carole FENTON, et al., Respondents, v. COUNTY OF DUTCHESS, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 42

539 N.Y.S.2d 42

148 A.D.2d 573

Carole FENTON, et al., Respondents, v. COUNTY OF DUTCHESS, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

March 20, 1989.

Stephen J. Wing, County Atty., Poughkeepsie (Keith P. Byron, of counsel), for appellants.

Moran, Spiegel, Pergament & Brown, Poughkeepsie (Marino D'Orazio and Keith V. LaRose, of counsel), for respondents.

Before MOLLEN, P.J., and KUNZEMAN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Dutchess County (Jiudice, J.), dated March 19, 1987, which granted the application.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted that branch of the application which sought leave on behalf of John Fenton to serve a late notice of claim, and substituting therefor a provision denying that branch of the application; as so modified, the order is affirmed, without costs or disbursements.

On November 12, 1985, the petitioner Carole Fenton sustained severe injuries when the automobile she was driving collided with a bus owned by Mountainview Coach Lines, Inc., and being operated as a loop bus for Dutchess County. The accident occurred on a County road at the site of a sharp, steeply graded curve. Approximately 14 months after the accident, Carole Fenton and her husband, the petitioner John Fenton, made the instant application for leave to serve a late notice of claim against the appellants, the County of Dutchess and the Dutchess County Highway Department. The petitioners alleged that the appellants negligently designed the roadway at the accident site and negligently failed to post signs warning of the dangerous condition. Additionally, the petitioners alleged that the County is vacariously liable for the negligent use and operation of the loop bus.

General Municipal Law § 50-e(5) empowers the court to evaluate requests for relief from the 90-day filing requirement by striking an "equitable balance * * * between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation" (Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142-143, 356 N.Y.S.2d 553, 313 N.E.2d 29; Matter of Gerzel v. City of New York, 117 A.D.2d 549, 550, 499 N.Y.S.2d 60; Heiman v. City of New York, 85 A.D.2d 25, 28, 447 N.Y.S.2d 158). General Municipal Law § 50-e(5), directs the courts to consider, "in particular, whether the public corporation * * * acquired actual knowledge of the essential facts constituting the claim" within the 90-day filing period or "a reasonable time thereafter". Other relevant factors include whether the claimant was mentally or physically incapacitated before the time limited for service of a notice of claim and whether the delay substantially prejudiced the public corporation's ability to defend on the merits.

In this case, Carole Fenton demonstrated that her failure to timely serve a notice of claim within the 90-day statutory period was attributable to her incapacitation. The hospital records and an affidavit from her treating physician substantiate her claim that she was physically and mentally incapacitated during her hospitalization of almost one month for, inter alia, a severe closed head injury sustained in the accident, and during her convalescence at home for approximately four months after her discharge from the neurological floor of the hospital.

After returning to work in April of 1986 Carole did not consult an attorney until October because, she contended, she continued to suffer to some degree from the physical effects of her injuries and psychological complications attendant to her rehabilitation and recovery. However, Carole's ability to perform her duties as a registered nurse renders her proffered explanation for not consulting an attorney until over six months after resuming her employment troublesome. But, contrary to the appellant's contention on appeal, the absence of a more reasonable explanation for her delay in retaining counsel does not compel the denial of her application when weighed against all the other relevant factors to be considered (see, Matter of Gerzel v. City of New York, supra, 117 A.D.2d at 551, 499 N.Y.S.2d 60; Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150, 153, 490 N.Y.S.2d 838; Matter of Chatman v. White Plains Housing Auth., 101 A.D.2d 838, 475 N.Y.S.2d 500). Moreover, we find reasonable the explanation proffered by the petitioners' attorney for making the instant application approximately three months after being retained (cf., Morgan v. City of Elmira, 115 A.D.2d 885, 496 N.Y.S.2d 578; Rechenberger v. Nassau County Med. Center, supra; Kravitz v. County of Rockland, 112 A.D.2d 352, 491 N.Y.S.2d 802, aff'd 67 N.Y.2d 685, 499 N.Y.S.2d 941, 490 N.E.2d 860).

It is manifest on the record that the County acquired actual knowledge of the essential facts constituting the petitioners' claims within the 90-day statutory period or shortly thereafter. The County commendably disclosed that a notice of claim was timely served by a passenger on the loop bus, who was allegedly injured in the collision with the petitioners' vehicle. The passenger's notice of claim does allege that the cause of the accident was the negligent operation of the loop bus. Although the bus passenger's timely-served notice of claim does not give the County notice of the petitioners' claim that the roadway was defectively designed, we can infer that the appellants had some knowledge of the potentially dangerous condition of the roadway...