Hubbard v. County of Madison

• Decision Date: 18 March 2010
• Parties: In the Matter of Phillip E. HUBBARD Jr. et al., Individually and on Behalf of Jamie L. Hubbard, Respondents, v. COUNTY OF MADISON, Appellant, et al., Respondent. (And a Related Action.)
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 538

71 A.D.3d 1313

In the Matter of Phillip E. HUBBARD Jr. et al., Individually and on Behalf of Jamie L. Hubbard, Respondents,

v. COUNTY OF MADISON, Appellant, et al., Respondent.(And a Related Action.)

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

March 18, 2010.

McLane, Smith & Lascurettes, Utica (Mark W. McLane of counsel), for appellant.

James G. DiStefano, Syracuse, for respondents.

Before: CARDONA, P.J., PETERS, ROSE, KAVANAGH and McCARTHY, JJ.

CARDONA, P.J.

Appeal from an order of the Supreme Court (Garry, J.), entered March 23, 2009 in Madison County, which granted petitioners' application pursuant to General Municipal Law § 50-e(5) for leave to file a late notice of claim.

In January 2008, Jamie L. Hubbard, then 23 years of age, lost control of her vehicle while driving westbound on Roberts Road in the Town of Lenox, Madison County and crossed into theoncoming lane of traffic before colliding with another vehicle driven by respondent Joseph H. Sadlowski. Hubbard sustained severe injuries as a result of the accident, including traumatic brain injury and quadriplegia. She was in a coma until April 2008. Although Hubbard was, and remains, nonverbal due to her catastrophic injuries, in May 2008, she was able to sufficiently make a mark so as to execute a general power of attorney in favor of petitioners, her parents. Petitioners subsequently sought guardianship over Hubbard's person and/or property and, in December 2008, retained legal counsel to pursue a negligence action on her behalf.

Thereafter, in January 2009, petitioners filed an application for leave to file a late verified notice of claim ( see General Municipal Law § 50-e). They simultaneously filed a summons and complaint and a proposed notice of claim that alleged, in general terms, that respondent County of Madison (hereinafter respondent), among other things, negligently maintained, designed,constructed and provided signage for the subject roadway. Respondent opposed the application. Subsequently, petitioners amended their application by filing and serving a notice of petition dated February 11, 2009 that included a revised verified notice of claim that particularized the location of the accident and provided specifics regarding respondent's alleged negligence.¹ In March 2009, Supreme Court granted petitioners' application and respondent appeals.

Notably, the decision of whether to allow the filing of a late notice of claim pursuant to General Municipal Law § 50-e(5) is a determination left to Supreme Court's sound discretion ( see Matter of Petersen v. Susquehanna Val. Cent. School Dist., 57 A.D.3d 1332, 1333-1334, 870 N.Y.S.2d 155 [2008] ). In making such a determination, the trial court must make inquiry into various factors, including whether the public corporation acquired actual knowledge, within 90 days or a reasonable time thereafter, of the facts constituting the claim, the reasonableness of the excuse proffered for the delay in filing, as well as "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law § 50-e[5]; see Matter of Dewey v. Town of Colonie, 54 A.D.3d 1142, 1142-1143, 863 N.Y.S.2d 849 [2008]; Matter of Heffelfinger v. Albany Intl. Airport, 43 A.D.3d 537, 538-539, 845 N.Y.S.2d 132 [2007] ). Significantly, "[t]hepresence or absence of any one of these factors is not necessarily determinative" ( Matter of Leeds v. Port Wash. Union Free School Dist., 55 A.D.3d 734, 734, 865 N.Y.S.2d 349 [2008]; see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538-539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ), and this Court has repeatedly held that, absent a clear abuse of the trial court's broad discretion, the " determination of an application for leave to serve a late notice of claim will not be disturbed" ( Matter of Isereau v. Brushton-Moira School Dist., 6 A.D.3d 1004, 1005, 776 N.Y.S.2d 129 [2004]; see Kirtley v. Albany County Airport Auth., 67 A.D.3d 1317, 1318, 889 N.Y.S.2d 128 [2009]; Matter of Dewey v. Town of Colonie, 54 A.D.3d at 1143, 863 N.Y.S.2d 849; Matter of Hinton v. New Paltz Cent. School Dist., 50 A.D.3d 1414, 1415, 857 N.Y.S.2d 753 [2008] ).

Here, upon review of Supreme Court's consideration of the requisite factors, we find no basis to conclude that the court abused its discretion in granting petitioners' application. At the outset, we need not linger over the assertion that petitioners did not provide a sufficient excuse for the delay in filing a notice of claim. Clearly, Hubbard, who remains nonverbal and requires constant care for the profound physical and mental disabilities sustained because of the accident, was not capable of interposing a negligence action against respondent on her own behalf ( see Matter of DeMolfetto v. City of New York, 216 A.D.2d 295, 296, 627 N.Y.S.2d 448 [1995] ). Given the uncontradicted proof of Hubbard's almost complete incapacity up to, and following, the filing of this application ( see Matter of Rosenberg v. City of New York, 309 N.Y. 304, 309, 130 N.E.2d 629 [1955] ), we agree with Supreme Court's conclusion that there was a sufficient excuse for the delay in filing thelate notice of claim ( see generally 24 Carmody-Wait 2d § 144:114 ["Determining whether incapacity excuses delay"] ).

Furthermore, we find no abuse of discretion in Supreme Court's ruling that petitioners met their burden "of showing lack of substantial prejudice to [respondent]" ( Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154). Given Hubbard's traumatic brain injury and apparent inability to recollect the details of the accident, an earlier notice of claim would not have improved respondent's ability to gain her first-hand...