Morris, Matter of

• Decision Date: 14 June 1982
• Citation: 88 A.D.2d 956,451 N.Y.S.2d 448
• Parties: In the Matter of Timothy C. MORRIS, Appellant (County of Suffolk, respondent).
• Court: New York Supreme Court — Appellate Division

Page 448

451 N.Y.S.2d 448

88 A.D.2d 956

In the Matter of Timothy C. MORRIS, Appellant (County of Suffolk, respondent).

Supreme Court, Appellate Division,

Second Department.

June 14, 1982.

Philip H. Sanderman, Cooper & McElligott, Deer Park (Guido Gabriele, Miller Place, of counsel), for appellant.

David J. Gilmartin, County Atty., Hauppauge (V. Anthony Maggipinto, Hauppauge, of counsel), for respondent.

Before LAZER, J. P., and GIBBONS, GULOTTA and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a late notice of claim, petitioner appeals (1) from an order of the Supreme Court, Suffolk County, dated November 18, 1980, which denied the application and (2) from so much of a further order of the same court, dated January 26, 1981, as, upon granting reargument, adhered to the original determination.

Appeal from the order dated November 18, 1980 dismissed as academic, without costs or disbursements. Said order was superseded by the order granting reargument.

Order dated January 26, 1981, affirmed insofar as appealed from, without costs or disbursements.

On January 13, 1980, petitioner, the owner and operator of a 1970 Dodge, was involved in a one-car collision on Old Nichols Road, which lies at the boundary between the Towns of Islip and Smithtown in Suffolk County. Thereafter, the towns were served with timely notices of claim which alleged negligence in the failure to adequately maintain the road. In response to the complaint served by petitioner's passengers in their negligence action against, inter alia, the Town of Islip and the petitioner, the town interposed an answer containing an affirmative defense that Suffolk County was responsible for the maintenance of the road in question. Although this answer was apparently received by petitioner on or about June 23, 1980, petitioner did not serve a notice of claim on the County of Suffolk until October 14, 1980.

By motion returnable November 5, 1980, petitioner made the instant application for an order permitting the late service of a notice of claim on Suffolk County on the ground that the police report filed by the Suffolk County Police Department after a prompt on-the-scene investigation had furnished the county with "actual notice" of the claim (see General Municipal Law, § 50-e, subd. 5). In denying the application, Special Term asserted that the police report did not constitute actual notice to the county and that the petitioner had failed to explain the four and one-half month hiatus between the receipt of the town's answer and the instant application. Petitioner has appealed.

In determining an application to extend the time to serve a notice of claim, the court should consider whether the public corporation received "actual knowledge of the essential facts constituting the claim" within 90 days after the claim arose or within a reasonable time thereafter (General Municipal Law, § 50-e, subd. 5), a factor which should be accorded great weight (see Matter of Beary v. City of Rye, 44 N.Y.2d 398, 412, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Ziecker v. Orchard Park, 70 A.D.2d 422, 421 N.Y.S.2d 447, affd. 51 N.Y.2d 957, 435 N.Y.S.2d 720, 416 N.E.2d 1055). Here, the police report did not furnish Suffolk County with either actual or constructive notice of the petitioner's claim since the report made no mention of any defective condition in the road (cf. Matter of Jakubowicz v. Dunkirk Urban Renewal Agency, 75 A.D.2d 1019, 429 N.Y.S.2d 333; Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 1025).

We cannot agree with our dissenting colleague that the error concerning the identity of the governmental entity responsible for the road's maintenance excused the delay in serving the notice of claim. While petitioner's attorney might have been more diligent in making inquiries which would have revealed the possible liability of the county (see Farnham v. State of New York, 195 Misc. 380, 90 N.Y.S.2d 165, affd. 277 App.Div. 1015, 99 N.Y.S.2d 1018; Pagan v. State of New York, 31 Misc.2d 235, 223 N.Y.S.2d 341), excuses of this nature may be accepted provided that prompt application for relief is made after discovery of the error (see, e.g., Nordman v. East Greenbush Cent. School Dist., 75 A.D.2d 958, 428 N.Y.S.2d 67; Robb v. New York City Housing Auth., 71 A.D.2d 1000, 420 N.Y.S.2d 291; Matter of Gross v. State of New York, 9 A.D.2d 594, 189 N.Y.S.2d 522; Kullman v. State of New York, 46 Misc.2d 873, 261 N.Y.S.2d 157; Matter of Lebensfeld v. State of New York, 14 Misc.2d 936, 180 N.Y.S.2d 386). The instant application, however, was not made until four and one-half months had elapsed from the time petitioner was informed by the Town of Islip's answer that the county maintained the road in question. Thus, the proffered excuse is unacceptable because of the unreasonable time between discovery of the error and the application for late leave.

Although the statute directs the court to consider all other relevant facts and circumstances (General Municipal Law, § 50-e, subd. 5), the fact that another Justice granted late leave to the passengers is insignificant since they were infants, a factor not present in this case (see Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 434 N.Y.S.2d 138, 414 N.E.2d 639). Cases in which infants' actions survive while those of adults are barred are not uncommon, although most of them are in a parent-child setting (...