Terrigino v. Vill. of Brockport

• Decision Date: 07 October 2011
• Parties: Patricia TERRIGINO and Michael Terrigino, Plaintiffs–Appellants,v.VILLAGE OF BROCKPORT, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1288
930 N.Y.S.2d 744
2011 N.Y. Slip Op. 07105

Patricia TERRIGINO and Michael Terrigino, Plaintiffs–Appellants,
v.
VILLAGE OF BROCKPORT, Defendant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 7, 2011.

[930 N.Y.S.2d 744]

E. Michael Cook, P.C., Rochester (Michael Steinberg of Counsel), for Plaintiffs–Appellants.Goldberg Segalla, LLP, Rochester (Timothy P. Welch of Counsel), for Defendant–Respondent.PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.

[930 N.Y.S.2d 745]

MEMORANDUM:

[88 A.D.3d 1288] Supreme Court abused its discretion in denying plaintiffs' motion for leave to serve a late notice of claim in this action in which plaintiffs seek damages for injuries sustained by plaintiff Patricia Terrigino when she tripped and fell on a sidewalk on defendant's property. We note at the outset that plaintiffs' motion was incorrectly characterized by the court in the order on appeal as one for summary judgment, inasmuch as the notice of motion specifies that plaintiffs seek leave to serve a late notice of claim. “[T]he failure to offer an excuse for the delay ‘is not fatal where ... actual notice was had and there is no compelling showing of prejudice to [defendant]’ ” ( Shane v. Central N.Y. Regional Transp. Auth., 79 A.D.3d 1820, 1821, 914 N.Y.S.2d 810; see Matter of Hall v. Madison–Oneida County Bd. of Coop. Educ. Servs., 66 A.D.3d 1434, 1435, 885 N.Y.S.2d 690). The record establishes that defendant “acquired actual knowledge of the essential facts constituting the claim” within a reasonable time after the 90–day period in which the notice of claim was required to be served (General Municipal Law § 50–e [5]; see § 50–e [1][a] ). In addition, defendant “ ‘failed to substantiate [its] conclusory assertions that [it was] substantially prejudiced by the ... delay’ ” ( Matter of LaMay v. County of Oswego, 49 A.D.3d 1351, 1352, 855 N.Y.S.2d 773, lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401; see Matter of Gilbert v. Eden Cent. School Dist., 306 A.D.2d 925, 926–927, 762 N.Y.S.2d 463).

Finally, we cannot conclude at the preliminary stage of this action that plaintiffs' claim is “patently meritless” due to the lack of prior written notice to defendant of the allegedly dangerous condition in the sidewalk, as required by section 39–3 of defendant's Code ( Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110). The lack of such prior written notice...