Opinion
1509 CA 17–01145
12-22-2017
In the Matter of Kathleen GUMKOWSKI, as Administratrix of the Estate of Gregory Gumkowski, Deceased, and Kathleen Gumkowski, Individually, Claimant–Respondent, v. TOWN OF TONAWANDA (Incorrectly Named as Town of Tonawanda, Town of Tonawanda Ems and Town of Tonawanda Police Department), Respondent–Appellant.
WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR RESPONDENT–APPELLANT. DEMPSEY & DEMPSEY, BUFFALO (CATHERINE B. DEMPSEY OF COUNSEL), FOR CLAIMANT–RESPONDENT.
WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR RESPONDENT–APPELLANT.
DEMPSEY & DEMPSEY, BUFFALO (CATHERINE B. DEMPSEY OF COUNSEL), FOR CLAIMANT–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent appeals from an order that, inter alia, granted claimant's application for leave to serve a late notice of claim (see generally General Municipal Law § 50–e [5 ] ). We affirm. In determining whether to grant such an application, Supreme Court should consider "whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality" ( Kennedy v. Oswego City Sch. Dist., 148 A.D.3d 1790, 1790, 50 N.Y.S.3d 229 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Turlington v. Brockport Cent. Sch. Dist., 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 [4th Dept. 2016] ). The presence or absence of any given factor is not determinative of the application and, moreover, the factors are "directive rather than exclusive" ( Downey v. Macedon Ctr. Volunteer Fire Dept., 179 A.D.2d 999, 1000, 579 N.Y.S.2d 507 [4th Dept. 1992] [internal quotation marks omitted] ). Absent a clear abuse of discretion, the court's determination should not be disturbed (see Kennedy, 148 A.D.3d at 1790, 50 N.Y.S.3d 229 ; cf. Matter of Darrin v. County of Cattaraugus, 151 A.D.3d 1930, 1931, 58 N.Y.S.3d 801 [4th Dept. 2017] ). Contrary to respondent's contention, claimant has shown a reasonable excuse for the delay and that the delay did not cause respondent substantial prejudice (see Matter of Pazienza v. Westchester County Health Care Corp., 142 A.D.3d 669, 670, 36 N.Y.S.3d 823 [2d Dept. 2016] ; Downey, 179 A.D.2d at 1000, 579 N.Y.S.2d 507 ). We therefore see no reason to disturb the court's determination.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.