In The Matter Of The Application Of Tri-state Consumer Ins. Co. A/s/o Rosemary A. Corozza v. Long Island Power Auth., Index No. 008222/10

• Court: United States State Supreme Court (New York)
• Writing for the Court: RANDY SUE MARBER
• Citation: 2010 NY Slip Op 33373
• Parties: In the matter of the application of TRI-STATE CONSUMER INSURANCE COMPANY a/s/o ROSEMARY A. COROZZA, Petitioner, v. LONG ISLAND POWER AUTHORITY, Respondent.
• Decision Date: 01 December 2010
• Docket Number: Index No. 008222/10,Motion Sequence No. 01

2010 NY Slip Op 33373

In the matter of the application of TRI-STATE CONSUMER INSURANCE COMPANY a/s/o ROSEMARY A. COROZZA, Petitioner,
v.
LONG ISLAND POWER AUTHORITY, Respondent.

Index No. 008222/10
Motion Sequence No. 01

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
TRIAL/IAS PART 20

Motion Date: August 17, 2010
DATED: November 29, 2010
Entered: December 01, 2010

Present: HON. RANDY SUE MARBER

JUSTICE

AMENDED ORDER

Papers Submitted:

Notice of Petition........................................x

Affirmation in Opposition...........................x

Affirmation in Reply...................................x

Upon the foregoing papers, the application by the Petitioner, TRI-STATE CONSUMER INSURANCE COMPANY a/s/o ROSEMARY A. CAROZZA ("TRI-STATE"), seeking an Order, pursuant to General Municipal Law § 50-e (5), granting the Petitioner leave to serve a late Notice of Claim, is decided as hereinafter provided.

This matter arises out of a subrogation claim brought by the Petitioner, TRI-STATE for property damage sustained to its insured, ROSEMARY A. CAROZZA's vehicle on or about December 27, 2009. The property damage was allegedly caused when TRI-

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STATE's insured's vehicle struck a pole that was lying across a portion of Commack Road. According to the Petitioner's counsel, on March 12, 2010, a Notice of Claim was timely served upon the County of Suffolk. On March 26, 2010, the Petitioner's counsel received correspondence from the County of Suffolk indicating that it did not own, operate or maintain the subject pole and that the Long Island Power Authority ("LIPA") was responsible for any damage. The Petitioner claims that since the correspondence from the County of Suffolk was received on or about the 90th day after the occurrence giving rise to the claim, a timely Notice of Claim could not be served upon LIPA. Thereafter, on April 28, 2010, the Petitioner filed its Petition with the Nassau County Clerk's Office. This application, for leave to file a late Notice of Claim, was received by the Supreme Court on May 11, 2010.

General Municipal Law § 50-e (5) provides for the filing of a Notice of Claim with the public corporation who may be liable for the happening of an incident. Pursuant to General Municipal Law § 50-e (1), a Notice of Claim must be served within ninety (90) days after the claim arises. The trial court, in its sound discretion, may grant leave to file a late Notice of Claim within a reasonable time after the expiration of the 90-day period and within one year after the happening of the event upon which the claim is based. In making its determination, the trial court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from

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its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. Acosta v. City of New York, 39 A.D.3d 629 (2nd Dept. 2007). The knowledge of the public corporation of the happening of the event is of great importance when making a determination to grant leave. Alexander v. Board of Education, 18 A.D.3d 654 (2nd Dept. 2005).

In support of its application, the Petitioner's counsel claims that LIPA will suffer no prejudice if the instant application is granted. Petitioner's counsel further contends that LIPA must have had actual notice of the occurrence giving rise to the claim because one of its power transmission poles was knocked down. Counsel for the...