CONNOR v. COUNTY OF ERIE (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Robert E. O'CONNOR and Karen M. O'Connor, Appellants, v. COUNTY OF ERIE, Respondent. (Appeal No. 2.)

Decided: March 19, 1999

PRESENT: HAYES, J.P., WISNER, PIGOTT, JR., CALLAHAN and BALIO, JJ.

James Armstrong, Buffalo, for appellants. Alisa Lukasiewicz, Buffalo, for respondent.

Supreme Court properly granted the motion of plaintiffs to renew their prior motion for leave to serve a late notice of claim against defendant, County of Erie (County), but abused its discretion in adhering to its original determination. On their motion to renew, plaintiffs established that the County had actual notice of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e[1] ) and that the County has not been substantially prejudiced as a result of the delay (see, Passalacqua v. County of Onondaga, 94 A.D.2d 949, 464 N.Y.S.2d 73). We therefore modify the order by granting plaintiffs' prior motion.

Order unanimously modified on the law and as modified affirmed with costs to plaintiffs.

MEMORANDUM:

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