Majority
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the Town of Greenburgh appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Walker, J.), entered July 7, 2011, as granted that branch of the petition which was for leave to serve a late notice of claim upon it.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, and that branch of the petition which was for leave to serve a late notice of claim upon the Town of Greenburgh is denied.
In determining whether to grant an application for leave to serve a late notice of claim, the key factors that the court must consider are whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant made an excusable error concerning the identity of the public corporation, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see General Municipal Law § 50-e [5]; Matter of Gershanow v Town of Clarkstown, 88 AD3d 879 , 880 [2011]; Matter of Iacone v Town of Hempstead, 82 AD3d 888 [2011]; Hebbard v Carpenter, 37 AD3d 538 , 540 [2007]).
The petitioner contends that the Town of Greenburgh acquired timely, actual knowledge of the facts constituting the claim by reason of an incident report that she filed with the Town of Greenburgh Police Department 21 days after the incident. The fact that the Town of Greenburgh Police Depart
In addition, the petitioner failed to demonstrate a reasonable excuse for her SVa-month delay in retaining an attorney.
Finally, the petitioner failed to establish that the Town would not be prejudiced by the eight-month delay, after the accident, in seeking leave to serve a late notice of claim (see Matter of Khalid v City of New York, 91 AD3d at 780 ; Matter of Valentine v City of New York, 72 AD3d 981 , 982 [2010]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138 , 153 [2008]; Matter of Aguilar v Town of Islip, 294 AD2d 358 , 359 [2002]).
Accordingly, the Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim on the Town. Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.
Cases cited
- Gershanow v. Town of Clarkstown 88 AD3d 879 at 880 p. 852
- Iacone v. Town of Hempstead 82 AD3d 888 p. 852
- Hebbard v. Carpenter 37 AD3d 538 at 540 p. 852
- Caselli v. City of New York 105 AD2d 251 at 255 p. 853
- Williams v. Town of Irondequoit 59 AD2d 1049 p. 853
- Williams v. Nassau County Medical Center 6 NY3d 531 at 537 p. 853
- Mitchell v. City of New York 77 AD3d 754 at 755 p. 853
- Devivo v. Town of Carmel 68 AD3d 991 at 992 p. 853
- National Grange Mutual Insurance v. Town of Eastchester 48 AD3d 467 at 468 p. 853
- Khalid v. City of New York 91 AD3d 779 at 780 p. 853
- Rios v. City of New York 180 AD2d 801 at 802 p. 853
- Valentine v. City of New York 72 AD3d 981 at 982 p. 853
- Felice v. Eastport/South Manor Central School District 50 AD3d 138 at 153 p. 853