- Bookmark
- Share
- CaseIQ
WETZEL SERVICES CORP. v. TOWN OF AMHERST
Order unanimously affirmed with costs. Memorandum: Supreme Court did not abuse its discretion in granting plaintiff's application for leave to serve a late notice of claim (see, General Municipal Law § 50-e). The court is vested with broad discretion to grant or deny the application (see, Matter of Rotoli v. Town of Gaines, 184 A.D.2d 1085; Downey v. Macedon Ctr. Volunteer Fire Dept., 179 A.D.2d 999; Barnes v. County of Onondaga, 103 A.D.2d 624, 629, affd 65 N.Y.2d 664; Matter of Ziecker v. Town of Orchard Park, 70 A.D.2d 422, 426, affd 51 N.Y.2d 957).
Plaintiff applied for permission to serve a notice of claim within the one year and 90-day limitation period (see, General Municipal Law § 50-i), albeit on the last day possible. Although plaintiff in its motion papers offered no excuse for failing to file a notice of claim within the statutory 90-day period (General Municipal Law § 50-e; see, Baehre v. County of Erie, 94 A.D.2d 943), it made a persuasive showing that defendant Town "acquired actual knowledge of the essential facts constituting the claim" (General Municipal Law § 50-e) because one of its police officers was involved in the accident and the police promptly investigated the accident and prepared a written report. Moreover, defendants have made no particularized or persuasive showing that the delay caused them substantial prejudice (see, Matter of Rotoli v. Town of Gaines, supra, at 1086; Downey v. Macedon Ctr. Volunteer Fire Dept., supra, at 1000).
Alert