IN THE MATTER OF JAMES FENNELL V. CITY SCHOOL DISTRICT OF THE CITY OF LONG BEACH

2014 N.Y. App. Div. LEXIS 4106 (June 11, 2014)

At issue on this appeal was whether the plaintiff’s application to serve a late notice of claim against a municipality should be granted. In considering the application to file a late notice of claim involving the §240(1) claim in this case, the court considered these factors:

• Whether the public corporation or its attorney or insurance carrier had actual notice
• Whether the petition had a reasonable excuse
• Whether the delay substantially prejudiced the public corporations (N.Y. Gen. Mun. Law §50-e[5])

In this case, the court noted that the plaintiff not having a reasonable excuse was not fatal, because the public corporation had actual notice and was not prejudiced.

Practice Note: Within two days of the accident, reports had been filed with the public corporation’s attorneys and insurance carrier by the public corporation’s security office that described the time and date of the accident, the injuries, and how the accident occurred.

Topics: Procedural Issues; Insurance Law; Actual or Constructive Notice of Dangerous Conditions