Opinion
November 14, 1994
Appeal from the Supreme Court, Kings County (Golden, J., Clemente, J.).
Ordered that the order dated January 27, 1993, is affirmed insofar as appealed from; and it is further,
Ordered that the order dated April 14, 1993, is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
On June 19, 1985, the Supreme Court granted the plaintiff leave to file a late notice of claim pursuant to General Municipal Law § 50-e (5), implicitly determining that the plaintiff was "insane" as a result of being in a coma from May 6, 1983 to March 6, 1984 (see, CPLR 208).
On August 21, 1992, the appellant moved for summary judgment dismissing the complaint as time-barred. During the pendency of that motion, the appellant also moved to vacate the Supreme Court's June 19, 1985, order which granted the plaintiff's motion to file a late notice of claim. The appellant argued that the plaintiff's hospital records, which the appellant had obtained in April, 1986, indicated that the plaintiff had misrepresented that he had been in a coma for ten months.
While an application to file a late notice of claim ordinarily must be brought within the one year and ninety-day period provided by General Municipal Law § 50-e (see, e.g., Pierson v City of New York, 56 N.Y.2d 950; Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256; Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671), the period in which a plaintiff could be permitted to file a late notice of claim will be extended where the plaintiff's "insanity" had tolled the applicable Statute of Limitations (see, CPLR 208; see also, Barnes v. County of Onondaga, 103 A.D.2d 624).
When determining an application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), a court has broad discretion to consider all relevant factors (see, Matter of Beary v. City of Rye, 44 N.Y.2d 398; Matter of Sanna v. Bethpage Pub. Schools Union Free School Dist. 21, 193 A.D.2d 606). On the record before this Court, which includes the plaintiff's affidavit and the medical records (see, e.g., Fenton v. County of Dutchess, 148 A.D.2d 573; Matter of Savelli v. City of New York, 104 A.D.2d 943), we find that the Supreme Court did not abuse its discretion in granting the plaintiff's motion to file a late notice of claim (see, e.g., Matter of Ramunno, 202 A.D.2d 511; Williams v. New York City Hous. Auth., 125 A.D.2d 258; Fahey v. County of Nassau, 111 A.D.2d 214; Matter of Bensen v. Town of Islip, 99 A.D.2d 755; Flynn v. City of Long Beach, 94 A.D.2d 713). Bracken, J.P., Copertino, Joy and Altman, JJ., concur.