Wemett v. Onondaga County
| Decision Date | 29 September 1978 |
| Citation | 409 N.Y.S.2d 312,64 A.D.2d 1025 |
| Parties | Application of Donna WEMETT and Richard Wemett, Appellants, v. COUNTY OF ONONDAGA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Van Lengen, Sanford & Papworth, Syracuse, for appellants by George Van Lengen, Syracuse.
MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, for respondent by John F. Lawton, Syracuse.
Before MOULE, J. P., and CARDAMONE, SIMONS, SCHNEPP and WITMER, JJ.
Petitioners appeal from an order of Supreme Court, Onondaga County, denying an application for leave to file a late notice of claim for personal injuries (General Municipal Law, § 50-e, subd. 5). On February 5, 1977 petitioner-wife suffered personal injuries and property damage when a county snowplow backed into her automobile. During the 90-day time limit imposed by section 50-e subd. 1(a) of the General Municipal Law for filing claims against public corporations, she consulted with her attorney and when it appeared that her personal injuries would not constitute a "serious injury" under section 673 of the Insurance Law (), no notice of claim was filed with the county. The county's insurance carrier promptly paid her total property damage claim of $668. Upon referral to a medical specialist, it was determined on June 23, 1977 that petitioner had sustained a bilateral thoracic outlet syndrome as a result of the accident. Surgery was prescribed and was performed in August. In December 1977 petitioners' attorney was advised of the serious injury, and these proceedings were immediately commenced. It is alleged that her condition required further surgery which was performed in January 1978. Special Term denied petitioners' application, holding that no explanation was offered for the protracted delay in serving the notice of claim after they learned of the seriousness of her injuries and that the county was prejudiced because the delay had put evidence essential to its defense of a personal injury action beyond its reach. We disagree. First of all, petitioners' failure to file within the 90-day period is excusable since the symptoms of Ms. Wemett's serious injury were not readily apparent and her condition was not diagnosed until June 1977, well after the time limitation had passed. The court has great flexibility and discretion to grant extensions of time within which to file notice of claim provided that the extension does not exceed the time limited for the commencement of an action against...
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Morris, Matter of
...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 entit......
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Innes v. Genesee County
...report noted that plaintiff was unable to see the other vehicle because of the contour of the road (see Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025, 1026, 409 N.Y.S.2d 312). Thus defendants acquired actual knowledge of all the facts relevant to plaintiff's claim shortly after the......
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Fenton v. County of Dutchess
...60; Rechenberger v. Nassau County Med. Center, 112 A.D.2d at 153, 490 N.Y.S.2d 838, supra; see also, Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 312). Under all the facts and circumstances, Carole Fenton was properly granted the opportunity to have her action to rec......
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Ford v. City of Syracuse
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