Marolda v. Town of Nassau
| Decision Date | 16 May 1996 |
| Citation | 642 N.Y.S.2d 428,227 A.D.2d 815 |
| Parties | Michelle E. MAROLDA, Respondent, v. TOWN OF NASSAU, New York, Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Donohue, Sabo, Varley & Armstrong P.C. (Frederick J. Hutchison, of counsel), Albany, for appellant.
Ruberti, Girvin & Ferlazzo P.C. (Christopher P. Langlois, of counsel), Albany, for respondent.
Before MERCURE, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.
Appeal from an order of the Supreme Court (Canfield, J.), entered June 6, 1995 in Rensselaer County, which, inter alia, granted plaintiff's application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.
On March 17, 1994, plaintiff was involved in a motor vehicle accident on a road maintained by defendant Town of Nassau, Rensselaer County (hereinafter defendant). Plaintiff, who was seven months pregnant, went into premature labor following the accident and was hospitalized. Concetta Marolda, plaintiff's mother, arrived at the scene of the accident minutes after it occurred. Later that day, Marolda, who serves as both defendant's Assessor of Taxes and as a member of its Roads Committee, informed, among others, defendant's Superintendent of Highways and the Town Supervisor's secretary that plaintiff had been injured in an accident which she attributed to the defective condition of a Town road and that plaintiff intended to file a negligence action against defendant.
On June 2, 1994, plaintiff's attorney allegedly served a notice of claim on defendant by regular, rather than certified, mail (see, General Municipal Law § 50-e[3] ). Defendant subsequently asserted that it had never received this notice of claim. Plaintiff thereafter retained new counsel who caused another notice of claim to be personally served upon defendant on November 29, 1994, over five months beyond the 90-day limitations period set forth in General Municipal Law § 50-e(1)(a). Defendant concedes receipt of this notice. In March 1995, plaintiff moved before Supreme Court for, inter alia, leave to file a late notice of claim. Supreme Court granted the motion and defendant appeals.
Supreme Court is vested with broad discretion in determining a motion to file a late notice of claim (see, General Municipal Law § 50-e[5] ). Such determinations will not be disturbed absent a demonstrated abuse of discretion (see, Matter of Moore v. Albany County Dept. of Health, 198 A.D.2d 691, 692, 603 N.Y.S.2d 355). We find no abuse of the court's discretion here.
It is evident that Supreme Court took into account the determinative factors set forth in General Municipal Law § 50-e(5), including whether defendant had actual knowledge of the essential facts giving rise to the claim within the 90-day limitations period or a reasonable time...
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