Logan v. City of Albany
| Decision Date | 26 October 1989 |
| Citation | 154 A.D.2d 861,546 N.Y.S.2d 722 |
| Parties | In the Matter of Joanne LOGAN, Individually and as Parent and Natural Guardian of Preshia Logan, an Infant, Respondent, v. CITY OF ALBANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Vincent J. McArdle, Jr. (Stacy Kitt, of counsel), Albany, for appellant.
Sommers & Sommers (Andrew C. Sommers, of counsel), Albany, for respondent.
Before MAHONEY, P.J., and CASEY, YESAWICH, LEVINE and HARVEY, JJ.
Appeal from an order of the Supreme Court (Conway, J.), entered May 16, 1988 in Albany County, which granted petitioner's application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.
On or about July 4, 1986, petitioner moved into an apartment then owned by Martha Ramsey. Prior to said occupancy, respondent, through its Building Inspector's Office, made an inspection of the apartment and issued a certificate of occupancy. Between the date of occupancy and October 1986 Preshia Logan, petitioner's infant daughter, ingested lead paint chips that had been peeling off the walls of the apartment. She was taken to the hospital and was diagnosed as having lead poisoning.
In March 1987, petitioner sought legal advice and was eventually referred to attorney James Linnan who, in addition to his private law practice, acted as Assistant Corporation Counsel for respondent. In May 1987, Linnan commenced a negligence action on petitioner's behalf against her landlord. However, soon thereafter Linnan determined through further investigation of petitioner's claim that petitioner might have a claim against respondent for the negligent issuance of the certificate of occupancy. Recognizing a potential conflict of interest on his part, Linnan referred the matter to another law firm. Petitioner's entire file was forwarded to that firm in August 1987. On December 23, 1987, petitioner moved by order to show cause seeking permission to file a late notice of claim upon respondent. This motion was granted and respondent now appeals.
We affirm. This court is vested with broad discretion in considering whether service of a late notice of claim should be permitted (Matter of Fast v. County of Broome, App.Div., 543 N.Y.S.2d 203; Matter of Delzotto v. County of Warren, 137 A.D.2d 950, 951, 525 N.Y.S.2d 373). Among the factors to be considered in these motions are whether the public corporation had actual knowledge of the essential facts constituting the claim and whether the delay in serving the notice of claim would substantially prejudice the public corporation in preparing its defense (id.; see, General Municipal Law § 50-e[5]. Here, although we reject petitioner's contention that Linnan's additional employment as Assistant Corporation Counsel to respondent served to give notice to respondent of petitioner's claim, we find that...
To continue reading
Request your trial
-
Anderson Development Corp. v. Isoreg Corp.
... ... Third Department ... Oct. 26, 1989 ... Peter A. Lynch, Albany, for appellant ... Alan R. Freedman (Michael J. Connolly, of counsel), Albany, for ... ...
-
Ali ex rel. Ali v. Bunny Realty Corp.
...in the litigation but only that there are sufficient facts to establish the reasonableness of said claims" (Matter of Logan v. City of Albany, 154 A.D.2d 861, 862, 546 N.Y.S.2d 722; see also, Weiss v. City of New York, 237 A.D.2d 212, 655 N.Y.S.2d 34). Although NYCHA contends that it cannot......
-
Frazzetta v. Rondout Valley Cent. School Dist.
...Law § 50-e[5]; Washington v. City of New York, 72 N.Y.2d 881, 883, 532 N.Y.S.2d 361, 528 N.E.2d 513; Matter of Logan v. City of Albany, 154 A.D.2d 861, 862, 546 N.Y.S.2d 722). Here, the incident occurred on respondent's property from which an ambulance transported petitioner to a hospital a......
-
Harwood ex rel. Murnane v. County of Albany
...after the injury was discovered (see, Matter of Holmes v. City of New York, 189 A.D.2d 676, 592 N.Y.S.2d 371; Matter of Logan v. City of Albany, 154 A.D.2d 861, 546 N.Y.S.2d 722). In so finding, we reject the contention that petitioner's failure to give any excuse for his delay (see, Matter......