In The Matter Of The Application Of Tri-state Consumer Ins. Co. A/s/o Rosemary A. Corozza v. Long Island Power Auth.
| Decision Date | 01 December 2010 |
| Docket Number | Index No. 008222/10,Motion Sequence No. 01 |
| 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. |
| Court | New York Supreme Court |
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- 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 fromits 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 Petitioner also contends that this application is filed as a matter of right as there was only a short delay after the time to file the Notice of Claim expired and was made within one year and ninety days from the occurrence.
In opposition to the Petition, the Respondent contends that the Petitioner's proposed claim against LIPA is without merit as it does not own, operate, maintain or control the pole. In support of this contention, the Respondent submitted the affidavit of William B. Chancellor, an emergency serviceman who responded to a police department call for the pole that was lying across Commack Road on the morning of December 27, 2009. See Affidavit of William B. Chancellor, attached to the Respondent's Affirmation in Opposition as Exhibit "E". Mr. Chancellor states in his affidavit that upon inspection of the utility pole, it was discovered that the pole bore a Verizon number "153 S" and an inspection of the wiresrevealed that the wires attached to the pole were Verizon trunk line cables. Id. Mr. Chancellor states that the application of the Petitioner should be denied as the pole and the wires involved in the incident were not owned by, or the responsibility of LIPA. Id.
The Respondent also argues that the Petition should be denied as the Petitioner's counsel failed to explain or justify the failure to serve the Notice of Claim within the applicable 90-day time period prescribed by the statute. The Respondent contends that the County of Suffolk's denial letter should not serve as a sufficient excuse for the Petitioner's failure to timely file a Notice of Claim. In that regard, the Respondent claims that the Petitioner's insured's accident report indicates that the pole involved in the accident was owned by LIPA. See Accident Report, dated December 27, 2009, attached to the Respondent's Affirmation in Opposition as Exhibit "E". As such, it is the Respondent's position that the Petitioner does not have a reasonable excuse for not timely serving a Notice of Claim upon LIPA, nor is...
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