Matter of Gillum v. County of Nassau

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CORNELIUS J. O'BRIEN
• Citation: Matter of Gillum v. County of Nassau, 726 N.Y.S.2d 458, 284 AD2d 533 (N.Y. App. Div. 2001)
• Decision Date: 11 April 2001
• Parties: (A.D. 2 Dept. 2001) In the Matter of Paulette Gillum, petitioner-respondent, v. County of Nassau, respondent-appellant, Town of Hempstead, respondent. 2000-07262 Submitted-

Page 458

726 N.Y.S.2d 458 (A.D. 2 Dept. 2001)

In the Matter of Paulette Gillum, petitioner-respondent, v. County of Nassau, respondent-appellant, Town of Hempstead, respondent.

2000-07262

SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

Submitted-April 11, 2001

June 25, 2001

Alfred F. Samenga, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), for respondent-appellant.

Sanders, Sanders, Block & Woycik, P.C., Mineola, N.Y. (Michael F. Villeck of counsel), for petitioner-respondent.

CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and STEPHEN G. CRANE, JJ.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), entered June 7, 2000, as granted that branch of the petitioner's application which was for leave to serve upon it a late notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and that branch of the petitioner's application which was for leave to serve upon the appellant a late notice of claim is denied.

The Supreme Court improvidently exercised its discretion in granting that branch of the petitioner's application which was for leave to serve upon the appellant a late notice of claim one year after the accident. Even accepting the petitioner's assertion that she was incapacitated due to her injuries, she failed to offer any excuse for the five-month delay after she obtained counsel (see, Matter of McAllister v County of Nassau, 202 A.D.2d 670).

Furthermore, the petitioner failed to establish that the appellant had received actual notice within 90 days after the claim arose or a reasonable time thereafter (see, DeAngelis v Board of Educ., A.D.2d [2d Dept., Mar. 12, 2001]). The police accident report did not provide the appellant with notice of the essential...