Harwood ex rel. Murnane v. County of Albany

• Decision Date: 07 January 1999
• Citation: 682 N.Y.S.2d 736
• Parties: 1999 N.Y. Slip Op. 98 In the Matter of the Claim of Joshua HARWOOD, an Infant, by Florence MURNANE, his Mother and Guardian, Respondent, v. COUNTY OF ALBANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 736

682 N.Y.S.2d 736

1999 N.Y. Slip Op. 98

In the Matter of the Claim of Joshua HARWOOD, an Infant, by

Florence MURNANE, his Mother and Guardian, Respondent, v. COUNTY OF ALBANY, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 7, 1999.

D'Agostino, Krackeler, Baynes & Maguire P.C. (Arete Sprio of counsel), Menands, for appellant.

O'Connell & Aronowitz (Peter Danziger of counsel), Albany, for respondent.

Before: MIKOLL, J.P., MERCURE, CREW, PETERS and CARPINELLO, JJ.

PETERS, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered March 26, 1998 in Albany County, which, inter alia, granted petitioner's cross application for leave to file a late notice of claim.

On September 4, 1997, petitioner filed a notice of claim which alleged that respondent acted negligently in performing lead testing upon various properties located in the City of Cohoes, Albany County. In November 1997, respondent moved to strike the notice of claim as untimely and petitioner thereafter cross-moved for leave to file a late notice of claim. Supreme Court denied respondent's motion and granted petitioner's cross motion. Respondent appeals.

General Municipal Law § 50-e states that in an action against a public corporation, a notice of claim must be served within 90 days after the claim arises. A court may, however, extend the time to serve a notice of claim after considering whether the petitioner was an infant or was incapacitated, whether the public corporation had actual knowledge of the essential facts constituting the claim, and whether the delay substantially prejudiced the public corporation in maintaining its defense (see, General Municipal Law § 50-e[5]; Matter of Rekemeyer v. Cerone, 232 A.D.2d 833, 834, 648 N.Y.S.2d 795), although no one factor is dispositive (see, Matter of Meredithe C. v. Carmel Cent. School Dist., 192 A.D.2d 952, 597 N.Y.S.2d 199).

Acknowledging that the decision to extend the time to serve a notice of claim is reserved to the sound discretion of the trial court, which should not be overturned unless there has been an abuse of discretion (see, Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 265, 434 N.Y.S.2d 138, 414 N.E.2d 639; Matter of Kelli A. v. Galway Cent. School Dist., 241 A.D.2d 883, 884, 660 N.Y.S.2d 228), we find no basis to disturb the decision rendered. Respondent's records contain the history of petitioner's file, including his medical treatment and the lead inspections. They detail that from 1985 to 1987, respondent's health facility performed nine blood tests on petitioner which indicated an elevated lead level, warranting hospitalizations on two separate occasions. Respondent's health officials tested two of petitioner's residences in relation to his file and one of his former residences which he continued to frequent. That residence was found...