Opinion
2001-08367
Argued September 10, 2002.
October 1, 2002.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the County of Nassau appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered August 28, 2001, which granted the petition.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Tara Talmadge and Gerald R. Podlesak of counsel), for appellant.
Cristal Lipsky Bresky Lowe, Mineola, N.Y. (Michael Lowe of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the petition is denied, and the proceeding is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim, which was made more than 5 ½ months after the accident (see Matter of Castlegrande v. Mahopac Cent. School Dist., 292 A.D.2d 604; Rabanar v. City of Yonkers, 290 A.D.2d 428; Matter of Morisson v. New York City Health Hosps. Corp., 244 A.D.2d 487). The appellant did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Matter of Castlegrande v. Mahopac Cent. School Dist., supra; Matter of Yearusskaya v. New York City Tr. Auth., 279 A.D.2d 583; Matter of Morrison v. New York City Health Hosps. Corp., supra; cf. Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573). Further, the petitioner failed to demonstrate that he was incapacitated to such an extent that he could not have complied with the statutory requirement to file the notice of claim in a timely manner (see Yearusskaya v. New York City Tr. Auth., supra). Finally, granting leave to serve a late notice of claim would result in prejudice to the appellant. The passage of time and the changed conditions of the lot where the accident occurred prevent the appellant from accurately reconstructing the circumstances surrounding the incident (see Rabanar v. City of Yonkers, supra; Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746; Matter of Gilliam v. City of New York, 250 A.D.2d 680). Accordingly, the Supreme Court erred in granting leave to serve a late notice of claim under the circumstances of this case.
FEUERSTEIN, J.P., SMITH, FRIEDMANN and ADAMS, JJ., concur.