In the Matter of Nicole M. Franco v. Town of Cairo

• Decision Date: 18 August 2011
• Citation: 87 A.D.3d 799,2011 N.Y. Slip Op. 06288,928 N.Y.S.2d 396
• Parties: In the Matter of Nicole M. FRANCO, Appellant,v.TOWN OF CAIRO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 799

928 N.Y.S.2d 396

2011 N.Y. Slip Op. 06288

In the Matter of Nicole M. FRANCO, Appellant,

v.TOWN OF CAIRO et al., Respondents.

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

Aug. 18, 2011.

Freeman Howard, P.C., Hudson (Andrew B. Howard of counsel), for appellant.Shantz & Belkin, Latham (Derek L. Hayden of counsel), for Town of Cairo, respondent.Law Office of Theresa Puleo, Albany (Norah M. Murphy of counsel), for County of Greene, respondent.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

LAHTINEN, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered August 30, 2010 in Greene County, which denied petitioner's application pursuant to General Municipal Law § 50–e (5) for leave to file a late notice of claim.

In December 2009, petitioner fractured her ankle when she allegedly fell on ice while walking on a sidewalk adjacent to Main Street, near Living Structures Realty and the Cairo Public Library, in the Town of Cairo, Greene County. In June 2010, she made this application for leave to serve a late notice of claim upon respondents. Supreme Court denied the motion finding that petitioner failed to establish that respondents had knowledge of the accident within 90 days, set forth a reasonable excuse for her delay and demonstrate a lack of prejudice to respondents. Petitioner appeals.

The 90–day notice requirement of General Municipal Law § 50–e is intended “to provide the municipality with the opportunity to investigate the alleged defective condition in a timely fashion and assess the merits of the claim, not to avoid liability” ( Williams v. City of New York, 229 A.D.2d 114, 116, 654 N.Y.S.2d 775 [1997] ). Supreme Court is accorded discretion in determining whether to grant leave to serve a late notice of claim and the well-recognized nonexhaustive list of relevant factors include actual knowledge of the respondent, reasonable excuse of the petitioner, and prejudice to the respondent caused by the delay ( see Matter of Hayes v. Delaware–Cananga–Madison–Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405, 1405, 912 N.Y.S.2d 781 [2010]; Kirtley v. Albany County Airport Auth., 67 A.D.3d 1317, 1318–1319, 889 N.Y.S.2d 128 [2009] ). Although we agree with Supreme Court that petitioner did not establish a reasonable excuse for the delay, petitioner sufficiently set forth the factors of knowledge by respondents of the accident and a lack of prejudice. Employees of respondents were summoned to the scene to assist petitioner, who was immobile and still positioned at the place where she had fallen when they arrived. Knowledge may be imputed to a municipality where its employees discern more than merely generalized awareness of an accident and injuries from their presence at an accident site ( see Matter of Schwindt v. County of Essex, 60 A.D.3d 1248, 1249–1250, 876 N.Y.S.2d 191 [2009]; Matter of Dewey v. Town of Colonie, 54 A.D.3d 1142, 1143, 863 N.Y.S.2d 849 [2008]; cf. Matter of Curiel v. Town of Thurman, 289 A.D.2d 737, 738, 734 N.Y.S.2d 320 [2001], lv. denied 97 N.Y.2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002] [knowledge not imputed where causes of accident and connection to potential negligence were not apparent to employees at the scene] ).

Here, police and emergency medical personnel were present and a written report was generated that specifically referenced the ice that allegedly caused petitioner to fall ( see Matter of Dewey v. Town of Colonie, 54 A.D.3d at 1143, 863 N.Y.S.2d 849). The report states that petitioner was lying along the sidewalk and that she indicated she had fallen because of built up ice at such location. The potential serious nature of her injury was evident not only from her immobility, but also, as related in the report, from the fact that she was crying and believed that she had broken her ankle. Moreover, less than two months after the accident, a law firm sent a letter to the Cairo Public Library regarding petitioner's accident and requested that the letter be forwarded to the liability insurance carrier. There is sufficient evidence of actual knowledge and an opportunity to investigate within the 90 days after the accident. Accordingly, respondents were not substantially prejudiced by the delay of about three months beyond the initial 90 days ( see Matter of Sutton v. Town of Schuyler Falls, 185 A.D.2d 430, 432, 585 N.Y.S.2d 830 [1992]; see also Matter of Hayes v. Delaware–Cananga–Madison–Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d at 1405–1406, 912 N.Y.S.2d 781; Rosenblatt v. City of New York, 160 A.D.2d 927, 927–928, 554 N.Y.S.2d 800 [1990] ).

Respondents' contention that the proposed action is meritless because there was no prior written notice of the condition may ultimately be a ground for summary judgment depending on what disclosure reveals, but is insufficient on this record to serve as a ground to deny the application to serve a late notice of claim ( see Miller v. County of Sullivan, 36 A.D.3d 994, 996–997, 827 N.Y.S.2d 750 [2007] ). In light of the circumstances set forth in the record, including the proof of knowledge of respondents of the accident and the lack of prejudice, petitioner's application should have been granted ( see Matter of Ruperti v. Lake Luzerne Cent. School Dist., 208 A.D.2d 1146, 1147, 617 N.Y.S.2d 597 [1994]; Matter of Esposito v. Carmel Cent. School Dist., 187 A.D.2d 854, 855, 589 N.Y.S.2d 703 [1992]; see also Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 763–764, 731 N.Y.S.2d 94 [2001] ).

MERCURE, J.P., KAVANAGH and GARRY, JJ., concur.ROSE, J. (dissenting).

I respectfully dissent. I cannot agree with the majority that petitioner sufficiently established that respondents acquired actual knowledge of the essential facts of the claim within 90 days of the accident. Although a Town of Cairo police officer responded to the scene and generated a police accident report, the content of that report is vague and ambiguous in describing the location of the accident, indicating that petitioner fell “on the...