Morano v. County of Dutchess, State of N.Y.
| Decision Date | 02 April 1990 |
| Citation | 160 A.D.2d 690,553 N.Y.S.2d 779 |
| Parties | Michael T. MORANO, et al., Respondents, v. COUNTY OF DUTCHESS, STATE OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ian G. MacDonald, Co. Atty., Poughkeepsie (Keith P. Byron, of counsel), for appellant.
Steven A. Greenwold, P.C., Poughkeepsie (Michael Kolb, of counsel), for respondents.
Before THOMPSON, J.P., and BROWN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered July 1, 1988, which granted the application.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof which granted that branch of the application which sought leave on behalf of Judith Morano to serve a late notice of claim, and substituting therefor a provision denying that branch of the application; as so modified, the judgment is affirmed, without costs or disbursements.
On May 18, 1987, Michael Morano was injured when he lost control of his vehicle and collided head-on with an oncoming vehicle. The accident occurred as he rounded a curve in the southbound lane of Titusville Road in Dutchess County and braked as he was suddenly confronted with another vehicle stopped in the southbound lane at the intersection with Richards Boulevard. He was rendered unconscious and immediately transported to a local hospital for treatment.
By notice of motion dated March 25, 1988, slightly more than 10 months after the accident, Michael Morano and his wife, Judith Morano, sought leave to serve a late notice of claim against the County of Dutchess. They alleged essentially that the County negligently designed the roadway at the accident site and negligently failed to post signs warning of the dangerous condition. In support of the application, Michael Morano submitted his own affidavit in which he attested that he was unable to comply with the provisions of General Municipal Law § 50-e requiring that a notice of claim be served and filed within 90 days of the accident because of his physical and mental incapacity.
In determining whether to grant relief from the 90-day time limit, General Municipal Law § 50-e(5) permits a court to consider a number of factors such as whether the petitioner has demonstrated a reasonable excuse for the failure to timely serve a notice of claim, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay substantially prejudiced the public corporation's ability to defend on the merits. A court may also consider whether the petitioner was mentally or physically incapacitated before the 90-day period expired.
In the instant case, the hospital and pharmaceutical records and an affidavit from Michael Morano's treating physician demonstrated that from the period of the accident until he consulted an attorney, he was suffering from the physical and mental effects of his injuries. He was hospitalized for nearly one week after the accident, and during the seven-month period of his...
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...facts underlying the claim within the 90–day statutory period or within a reasonable time thereafter ( see Morano v. County of Dutchess, 160 A.D.2d 690, 692, 553 N.Y.S.2d 779;Fahey v. County of Nassau, 111 A.D.2d 214, 217, 489 N.Y.S.2d 249). Finally, under the circumstances of this case, th......
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