Opinion
2002-10147
Argued September 2, 2003.
October 27, 2003.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Suffolk County (Dunn, J.), dated September 23, 2002, which denied the application.
Davis Hersh, LLP, Hauppauge, N.Y. (Michele Trabold-Bellino of counsel), for appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the application is granted, and the notice of claim is deemed served.
In determining whether to grant leave to serve a late notice of claim, the court must consider (1) whether the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits ( see Matter of Castlegrande v. Mahopac Cent. School Dist., 292 A.D.2d 604; Matter of Bergren v. Wappingers Cent. School Dist., 278 A.D.2d 492). Under the circumstances of this case, the petitioners' application should have been granted.
RITTER, J.P., GOLDSTEIN, McGINITY and CRANE, JJ., concur.