Kressner v. Town of Malta

CourtNew York Supreme Court — Appellate Division
Writing for the CourtWEISS
Citation130 N.Y. 643,564 N.Y.S.2d 643,169 A.D.2d 927
Decision Date10 January 1991
PartiesIn the Matter of Jutta KRESSNER, Respondent, v. TOWN OF MALTA, Appellant.

Page 643

564 N.Y.S.2d 643
169 A.D.2d 927
In the Matter of Jutta KRESSNER, Respondent,
v.
TOWN OF MALTA, Appellant.
Supreme Court, Appellate Division,
Third Department.
Jan. 10, 1991.

Page 644

Horigan, Horigan, Pennock & Lombardo (Douglas Landon, of counsel), Amsterdam, for appellant.

Grasso, Rodriguez, Putorti & Grasso (Lawrence J. Zyra, of counsel), Schenectady, for respondent.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

WEISS, Justice.

Appeal from an amended order of the Supreme Court (Brown, J.), entered October 12, 1989 in Saratoga County, which granted petitioner's application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

Petitioner fell in the vicinity of her driveway and mailbox on December 31, 1988. She contends that her fall was a result of accumulation of ice and moisture resulting from respondent's improper plowing of the roadway which caused a diversion of water and ice. Her injuries included fractures of her arm and wrist requiring a cast for 10 weeks following one week of hospitalization. She thereafter received physical therapy until April 1989.

Petitioner mailed a motion for leave to serve a late notice of claim to respondent 1 at the end of June 1989 or during early July 1989. This was the first notification respondent received of the incident and petitioner's injuries. Petitioner contended that she was unaware of the notice of claim requirement of General Municipal Law § 50-e and that her ability to travel was limited by her injuries. Supreme Court granted the application and respondent now appeals.

The standards governing applications for leave to file a late notice of claim have purposely been made elastic in order to [169 A.D.2d 928] afford courts broad discretion. The statute requires that particular attention be given to whether the municipality acquired actual notice of the essential facts constituting the claim within 90 days or within a reasonable time thereafter, and whether the delay substantially prejudiced preparation of a defense (General Municipal Law § 50-e[5]; see, Matter of Delzotto v. County of Warren, 137 A.D.2d 950, 951, 525 N.Y.S.2d 373; see also, Matter of Strevell v. South Colonie Cent. School Dist., 144 A.D.2d 733, 734, 535 N.Y.S.2d 147). Here, actual knowledge has not been shown and changed conditions may prevent an accurate reconstruction of the circumstances of the accident (see, Kravitz v. County of Rockland, 112 A.D.2d 352, ...

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5 practice notes
  • Dusch v. Erie Cnty. Med. Ctr., 1025
    • United States
    • New York Supreme Court Appellate Division
    • June 12, 2020
    ...demonstrated abuse[,] ... such discretion is ultimately reposed in [the Appellate Division]" ( Matter of Kressner v. Town of Malta , 169 A.D.2d 927, 928, 564 N.Y.S.2d 643 [3d Dept. 1991] ; see Matter of Stowe v. City of Elmira , 31 N.Y.2d 814, 815, 339 N.Y.S.2d 463, 291 N.E.2d 586 [197......
  • Gorinshek v. City of Johnstown
    • United States
    • New York Supreme Court Appellate Division
    • September 24, 1992
    ...[still] have existed" had the claims been timely filed (id., at 241, 567 N.Y.S.2d 734; cf., Matter of Kressner v. Town of Malta, 169 A.D.2d 927, 564 N.Y.S.2d 643). Under the totality of the circumstances of this case, it was not an improvident exercise of discretion by Supreme Court to......
  • Sutton v. Town of Schuyler Falls
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1992
    ...the delay substantially prejudiced preparation of a defense (General Municipal Law § 50-e[5]; see, Matter of Kressner v. Town of Malta, 169 A.D.2d 927, 928, 564 N.Y.S.2d 643; Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d In opposing petitioner's application, responden......
  • Adler v. Helman
    • United States
    • New York Supreme Court — Appellate Division
    • January 10, 1991
    ...of its authority in the preparation of the title report, the agent's sole purpose was to induce plaintiff to purchase real property [169 A.D.2d 927] owned by one of the agent's officers and shareholders, and the fraud also induced the principal, Lawyers, to issue a fee title insurance polic......
  • Request a trial to view additional results
5 cases
  • Dusch v. Erie Cnty. Med. Ctr., 1025
    • United States
    • New York Supreme Court Appellate Division
    • June 12, 2020
    ...demonstrated abuse[,] ... such discretion is ultimately reposed in [the Appellate Division]" ( Matter of Kressner v. Town of Malta , 169 A.D.2d 927, 928, 564 N.Y.S.2d 643 [3d Dept. 1991] ; see Matter of Stowe v. City of Elmira , 31 N.Y.2d 814, 815, 339 N.Y.S.2d 463, 291 N.E.2d 586 [197......
  • Gorinshek v. City of Johnstown
    • United States
    • New York Supreme Court Appellate Division
    • September 24, 1992
    ...[still] have existed" had the claims been timely filed (id., at 241, 567 N.Y.S.2d 734; cf., Matter of Kressner v. Town of Malta, 169 A.D.2d 927, 564 N.Y.S.2d 643). Under the totality of the circumstances of this case, it was not an improvident exercise of discretion by Supreme Court to......
  • Sutton v. Town of Schuyler Falls
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1992
    ...the delay substantially prejudiced preparation of a defense (General Municipal Law § 50-e[5]; see, Matter of Kressner v. Town of Malta, 169 A.D.2d 927, 928, 564 N.Y.S.2d 643; Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d In opposing petitioner's application, responden......
  • Adler v. Helman
    • United States
    • New York Supreme Court — Appellate Division
    • January 10, 1991
    ...of its authority in the preparation of the title report, the agent's sole purpose was to induce plaintiff to purchase real property [169 A.D.2d 927] owned by one of the agent's officers and shareholders, and the fraud also induced the principal, Lawyers, to issue a fee title insurance polic......
  • Request a trial to view additional results

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