Iacone v. Town of Hempstead

• Decision Date: 08 March 2011
• Citation: 82 A.D.3d 888,918 N.Y.S.2d 202
• Parties: In the Matter of Nicolette Ann IACONE, etc., et al., respondents, v. TOWN OF HEMPSTEAD, appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 202

82 A.D.3d 888

In the Matter of Nicolette Ann IACONE, etc., et al., respondents,

v.TOWN OF HEMPSTEAD, appellant.

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

March 8, 2011.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Leslie R. Bennett and Wesley C. Glass of counsel), for appellant.

Kalb & Rosenfeld, P.C., Commack, N.Y. (John A. Meringolo of counsel), for respondents.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim on behalf of the infant petitioner, the Town of Hempstead appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated January 14, 2010, which granted the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the petition is denied.

Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter; whether the claimant was an infant, or mentally or physically incapacitated; whether the claimant, in serving a notice of claim, made an excusable error concerning the identity of the public corporation against which the claim should be asserted; whether the delay would substantially prejudice the public corporation in maintaining its defense; and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim ( see General Municipal Law § 50-e[5];Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 992, 891 N.Y.S.2d 154; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 851 N.Y.S.2d 218). While the presence or the absence of any one of the factors is not necessarily determinative ( see Matter of Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 857 N.Y.S.2d 222; Jordan v. City of New York, 41 A.D.3d 658, 659, 838 N.Y.S.2d 624), whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance ( see Matter of Gonzalez v. City of New York, 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 147, 851 N.Y.S.2d 218). The municipality must have "knowledge of the facts that underlie the legal theory or theories on which liability is predicated" in the proposed notice of claim, and not merely some general knowledge that a wrong has been committed ( Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 148, 851 N.Y.S.2d 218; see Matter of Devivo v. Town of Carmel, 68 A.D.3d at 992, 891 N.Y.S.2d 154; Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 A.D.3d 830, 832, 855 N.Y.S.2d 265; Pappalardo v. City of New York, 2 A.D.3d 699, 768 N.Y.S.2d 660).

Here, the petitioners failed to demonstrate that the appellant, Town of Hempstead, obtained actual knowledge of the essential facts of the claim by virtue of prior complaints from residents to install a traffic signal light at the intersection where the accident occurred. There was no showing that the appellant had actual timely knowledge of the occurrence of the subject accident, the identity of the petitioners as claimants, the nature of the claim, the cause of the accident, or of any connection between the infant petitioner's injuries and any alleged negligence of the appellant ( see Matter of Mitchell v. City of New York, 77 A.D.3d 754, 755, 908 N.Y.S.2d 603; Matter of Devivo v. Town of Carmel, 68 A.D.3d at 992, 891 N.Y.S.2d 154; Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730, 731, 607 N.Y.S.2d 108; Kravitz v. County of Rockland, 112 A.D.2d 352, 352-353, 491 N.Y.S.2d 802, affd....