Opinion
02-03-2017
Gordon J. KING and Brenda King, Claimants–Respondents, v. NIAGARA FALLS WATER AUTHORITY and Niagara Falls Water Board, Respondents–Appellants.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Cory J. Weber of Counsel), for Respondents–Appellants. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Claimants–Respondents.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Cory J. Weber of Counsel), for Respondents–Appellants.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Claimants–Respondents.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:Respondents appeal from an order that granted claimants' application for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5). On April 18, 2014, Gordon J. King (claimant) allegedly sustained injuries after his motor vehicle struck a depression in a roadway in the City of Niagara Falls (City). Claimants filed a timely notice of claim against the City, among others, and thereafter commenced a negligence action against them. In February 2015, in response to a Freedom of Information Law request, the City provided claimants with a copy of a permit, issued February 26, 2014, for the replacement of a water line in the vicinity of the accident. The permit listed respondent Niagara Falls Water Board (Water Board) as the general contractor on the project. On April 17, 2015, claimants applied for leave to serve a late notice of claim upon respondents.
Contrary to respondents' contention, Supreme Court did not abuse its discretion in granting claimants' application. The decision whether to grant such an application requires the court to consider several factors, none of which is determinative (see General Municipal Law § 50–e [5 ]; Dalton v. Akron Cent. Schs., 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787, affd. 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 ). "The three main factors are ‘whether the claimant has shown a reasonable excuse for the delay, whether the [governmental entity] 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 [governmental entity]’ " (Dalton, 107 A.D.3d at 1518, 966 N.Y.S.2d 787 ; see generally § 50–e[5] ). An "[e]rror concerning the identity of the governmental entity to be served" can constitute a reasonable excuse for the delay "provided that a prompt application for relief is made after discovery of the error" (Matter of Farrell v. City of New York, 191 A.D.2d 698, 699, 595 N.Y.S.2d 531 ; see Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1305, 770 N.Y.S.2d 258, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 ). "The court is vested with broad discretion to grant or deny the application" (Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965, 965, 616 N.Y.S.2d 832 ) and, "absent a clear abuse of the ... court's broad discretion, the ‘determination of an application for leave to serve a late notice of claim will not be disturbed’ " (Matter of Hubbard v. County of Madison, 71 A.D.3d 1313, 1315, 897 N.Y.S.2d 538 ; see Dalton, 107 A.D.3d at 1518, 966 N.Y.S.2d 787 ).
Here, claimants demonstrated a reasonable excuse for the delay inasmuch as they served a timely notice of claim upon the City, and then promptly applied for leave to serve a late notice of claim upon respondents after discovering respondents' alleged involvement in causing claimant's injuries (see Matter of Ruffino v. City of New York, 57 A.D.3d 550, 551, 868 N.Y.S.2d 739 ; cf.
Santana, 2 A.D.3d at 1305, 770 N.Y.S.2d 258 ). Furthermore, although respondents lacked actual knowledge of claimant's injuries, respondents have " ‘made no particularized or persuasive showing that the delay caused [them] substantial prejudice’ " (Shaul v. Hamburg Cent. Sch. Dist., 128 A.D.3d 1389, 1389, 8 N.Y.S.3d 522 ). Indeed, we note that the Water Board was the general contractor for the construction project that allegedly created the defect in the roadway, and thus respondents' ability to investigate the facts underlying the claim is furthered by their possession of documents and other information related to the construction project. Under the particular circumstances of this case, we cannot conclude that there was a clear abuse of the court's broad discretion (see generally Dalton, 107 A.D.3d at 1518, 966 N.Y.S.2d 787 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.