Summary
In Matter of Singh v. City Univ. of N.Y. Bronx Community Coll. (223 A.D.2d 545), the agency failed to disclose the contents of reports compiled in the aftermath of an accident.
Summary of this case from In re Johnson v. City of New YorkOpinion
January 8, 1996
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the application is granted, and the proposed notice of claim contained in the record on appeal is deemed served.
The petitioner was injured on the grounds of Bronx Community College on May 21, 1993, when the scaffolding on which he was working collapsed, causing him to fall approximately 15 feet to the ground. The petitioner timely served notices of claim against both the City of New York and the State of New York. However, the plaintiff failed to timely serve the Board of Trustees of the City University of New York, as mandated by Education Law § 6224. The petitioner, claiming ignorance of this statutory provision, thereafter made the instant application on or about December 30, 1993.
The General Municipal Law allows for the exercise of considerable discretion in determining whether to permit service of a late notice of claim ( see, General Municipal Law § 50-e; Matter of Harris v Dormitory Auth., 168 A.D.2d 560). In exercising its discretion, the court must focus on whether the petitioner has a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits ( see, Matter of Farrell v City of New York, 191 A.D.2d 698; Matter of Charles v New York City Health Hosps. Corp., 166 A.D.2d 526).
While the reasonableness of the excuse proffered by the petitioner may be open to some question, the absence of an acceptable excuse is not necessarily fatal within the context of this case ( see, Matter of Morgan v New York City Hous. Auth., 181 A.D.2d 890). The respondent wholly failed to assert that it would be prejudiced by granting the petitioner's application ( see, Matter of Cicio v City of New York, 98 A.D.2d 38, 39). In addition, the respondent apparently failed to disclose the reports and records which its employees are alleged to have compiled in the aftermath of the accident. As such, the respondent frustrated the petitioner's efforts to demonstrate that the respondent had actual notice of the essential facts constituting the claim within 90 days or a reasonable time thereafter. Significantly, the respondent does not controvert the existence of such reports, does not dispute the claim that campus security personnel undertook an investigation on the date of the accident, and does not take issue with the assertion that it acquired actual notice of the accident upon its occurrence ( see, Matter of Farrell v City of New York, 191 A.D.2d 698, supra). Accordingly, under these circumstances, the Supreme Court improvidently exercised its discretion in denying the petitioner leave to serve a late notice of claim. Miller, J.P., Pizzuto, Joy and Goldstein, JJ., concur.