Gumkowski v. Town of Tonawanda

• Decision Date: 22 December 2017
• Docket Number: CA 17–01145,1509
• Citation: 156 A.D.3d 1481,65 N.Y.S.3d 891 (Mem)
• Parties: In the Matter of Kathleen GUMKOWSKI, as Administratrix of the Estate of Gregory Gumkowski, Deceased, and Kathleen Gumkowski, Individually, Claimant–Respondent, v. TOWN OF TONAWANDA (Incorrectly Named as Town of Tonawanda, Town of Tonawanda Ems and Town of Tonawanda Police Department), Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1481
65 N.Y.S.3d 891 (Mem)

In the Matter of Kathleen GUMKOWSKI, as Administratrix of the Estate of Gregory Gumkowski, Deceased, and Kathleen Gumkowski, Individually, Claimant–Respondent,
v.
TOWN OF TONAWANDA (Incorrectly Named as Town of Tonawanda, Town of Tonawanda Ems and Town of Tonawanda Police Department), Respondent–Appellant.

1509
CA 17–01145

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

Entered: December 22, 2017

WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR RESPONDENT–APPELLANT.

DEMPSEY & DEMPSEY, BUFFALO (CATHERINE B. DEMPSEY OF COUNSEL), FOR CLAIMANT–RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

156 A.D.3d 1481

Respondent appeals from an order that, inter alia, granted claimant's application for leave to serve a late notice of claim (see generally General Municipal Law § 50–e [5 ] ). We affirm. In determining whether to grant such an application, Supreme Court should consider "whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality" ( Kennedy v. Oswego City Sch. Dist., 148 A.D.3d 1790, 1790, 50 N.Y.S.3d 229 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Turlington v. Brockport Cent. Sch. Dist., 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 [4th Dept. 2016] ). The presence or absence of any given factor is not determinative of the application and, moreover, the factors are "directive rather than exclusive" (

156 A.D.3d 1482

Downey v. Macedon Ctr. Volunteer Fire Dept., 179 A.D.2d 999, 1000, 579 N.Y.S.2d 507 [4th Dept. 1992] [internal quotation marks omitted] ). Absent a clear abuse of discretion, the court's determination

65 N.Y.S.3d 892 ...