Sutton v. Town of Schuyler Falls
| Decision Date | 09 July 1992 |
| Citation | 185 A.D.2d 430,585 N.Y.S.2d 830 |
| Parties | In the Matter of Diane SUTTON, Appellant, v. TOWN OF SCHUYLER FALLS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
A. Stanley Proner, P.C. (Michael J. Hutter, Albany, of counsel), New York City, for appellant.
Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Susan Di Bella Harvey, of counsel), Albany, for Town of Schuyler Falls, respondent.
Thorn & Gershon (Nancy F. Nicholson, of counsel), Albany, for Town of Peru, respondent.
Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.
Appeals (1) from two orders of the Supreme Court (Plumadore, J.), entered July 15, 1991 and July 25, 1991 in Clinton County, which denied petitioner's application pursuant to General Municipal Law § 50-e(5) for leave to file a late notice of claim, and (2) from an order of said court, entered October 23, 1991 in Clinton County, which denied petitioner's motion for reconsideration.
Petitioner was seriously injured on November 3, 1990 when the motorcycle on which she was a passenger failed to negotiate a sharp turn on Burnt Hill Road. This road lies at the border of the Towns of Peru and Schuyler Falls in Clinton County. A report of the accident, completed at the site by a State Trooper, noted that an apparent contributing factor was the "[e]xtreme soft shoulder--sand only--causing tire to sink in". Petitioner asserts that she retained counsel to represent her in connection with this accident approximately 45 days after its occurrence. A notice of claim, however, was not filed within the 90-day period specified in General Municipal Law § 50-e(1)(a) because of uncertainty as to the public entity responsible for Burnt Hill Road and a clerical mistake in the office of petitioner's attorney. On March 21, 1991, 49 days after the 90-day expiration date of February 1, 1991, and almost five months after the accident, petitioner sought leave to serve late notices of claim upon respondents. The proposed notices of claim stated that respondents were negligent in that "although the road made a 90 degree left hand turn * * * there was no lighting on the roadway, no warnings of any kind of the dangerous curve and the shoulder of the road consisted of extremely soft sand". Supreme Court denied petitioner's application. Thereafter, petitioner sought reargument and renewal of her application which Supreme Court, treating the motion solely as one for reargument, denied. These appeals by petitioner ensued. 1
General Municipal Law § 50-e permits courts to evaluate requests for relief from the 90-day filing requirement by striking an equitable balance between a public corporation's need for prompt notification of a claim against it and an injured party's interest in just compensation (see, Matter of Ferrer v. City of New York, 172 A.D.2d 240, 241, 567 N.Y.S.2d 734; Matter of Gerzel v. City of New York, 117 A.D.2d 549, 550, 499 N.Y.S.2d 60; Heiman v. City of New York, 85 A.D.2d 25, 28, 447 N.Y.S.2d 158). In determining whether to grant permission to file a late notice of claim, courts are required to consider all relevant facts and circumstances, particularly whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, and whether the delay substantially prejudiced preparation of a defense (General Municipal Law § 50-e[5]; see, Matter of Kressner v. Town of Malta, 169 A.D.2d 927, 928, 564 N.Y.S.2d 643; Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189).
In opposing petitioner's application, respondents contended that the failure to serve timely notices of claim would severely prejudice their ability to defend the case on the merits. Emphasizing that petitioner's potential action was based, in large part, upon allegations of an extremely soft shoulder, respondents argued that it would be impossible for them to investigate the facts and circumstances of the accident given that the condition of the roadway and shoulder would have been drastically...
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