Morgan v. City of Elmira

• Decision Date: 19 December 1985
• Citation: 115 A.D.2d 885,496 N.Y.S.2d 578
• Parties: In the Matter of Vivian MORGAN, Respondent, v. CITY OF ELMIRA, New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 578

496 N.Y.S.2d 578

115 A.D.2d 885

In the Matter of Vivian MORGAN, Respondent, v. CITY OF ELMIRA, New York, et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Dec. 19, 1985.

Kramer, Wales & Wright (Philip J. Kramer, of counsel), Binghamton, for City of Elmira, N.Y., appellant.

Levene, Gouldin & Thompson (John L. Perticone, of counsel), Binghamton, for Elmira Housing Authority, appellant.

Ziff, Weiermiller, Learned & Hayden (Carl T. Hayden, of counsel), Elmira, for respondent.

Before MAHONEY, P.J., and MAIN, WEISS and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court at Special Term (Swartwood, J.), entered September 12, 1984 in Chemung County, which granted petitioner's application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

On January 8, 1984, petitioner was a resident of an apartment located in Jones Court Housing Project in the City of Elmira, Chemung County. On that date, Elmira City Police, in an attempt to capture two fugitives from justice, became engaged in a shootout with the fugitives who were located in the apartment situated immediately below petitioner's apartment. Petitioner was in her apartment at the time of the shooting. Although petitioner noticed that she had certain emotional or psychological changes, she sought no medical attention until April 24, 1984, when she was examined by a psychiatrist who formed an opinion that her emotional disturbance had been caused by the shock of being exposed to the shootout. Two days after her examination, she contacted a lawyer and decided to make a claim against the City of Elmira. Petitioner's claim was based on the decision by the police to allow her into the building when it was known that there were dangerous criminals inside and that a shootout was possible.

There was no compliance with the 90-day provision of General Municipal Law § 50-e(1)(a) for the filing of a notice of claim. On July 13, 1984, petitioner moved for permission to serve a late notice of claim. In her supporting affidavit, petitioner stated that she did not know the cause of her emotional disorder until she consulted a doctor on April 24, 1984, 17 days after the expiration of the 90-day limitation. Petitioner also contended, in a most conclusory and general manner, that the City had been put on notice because other persons had filed timely notices of claim. Special Term granted petitioner's motion and this appeal by respondents ensued.

Permitting the late filing of a notice of claim is discretionary with the trial court (Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189). However, the statute sets forth specific factors to be considered by the court in reaching its decision (General Municipal Law § 50-e[5] ). One factor is whether the municipality acquired actual knowledge of the material facts which constitute the claim within the 90-day period. Another factor is whether the late filing has substantially prejudiced the municipality's ability to defend against the claim.

A person seeking to file a late notice of claim has the burden to establish "in particular, whether the [respondent] acquired actual knowledge of the essential facts constituting the claim within [the 90-day period]" (General Municipal Law § 50-e[5]; see, O'Dell v. Town of Greenport, 97 A.D.2d 887, 470 N.Y.S.2d 710; Matter of Cooper v. City of Rochester, 84 A.D.2d 947, 446 N.Y.S.2d 644). The record does not include any notice of claim filed by any other claimant. We cannot, therefore, assume that the City had any knowledge of petitioner's exposure to the event. Certainly, the City had no knowledge that petitioner was damaged in any way.

We agree that petitioner's failure to meet the 90-day deadline was excusable because she did not learn of the alleged cause of her emotional problems within that time. However, we find petitioner's delay of 78 days, after consultation with her attorney before making her motion, to be inexcusable. No explanation for that delay was offered (see, Matter of Raczy v. County of Westchester, 95 A.D.2d 859, 464...