McBEE v. COUNTY OF ONONDAGA (2006)

Supreme Court properly exercised its broad discretion in granting plaintiff's application pursuant to General Municipal Law § 50-e (5) seeking leave to serve a late notice of claim (see Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965, 616 N.Y.S.2d 832).   Contrary to defendant's contention, plaintiff demonstrated a reasonable excuse for her delay (see Matter of Greene v. Rochester Hous. Auth., 273 A.D.2d 895, 709 N.Y.S.2d 767).   Further, although defendant did not have actual notice of the facts underlying the claim within 90 days following plaintiff's accident, defendant failed to establish that it was prejudiced by the lack of timely notice (see Matter of Haeg v. County of Suffolk, 30 A.D.3d 519, 520, 817 N.Y.S.2d 125;  Matter of McHugh v. City of New York, 293 A.D.2d 478, 739 N.Y.S.2d 449).   According to plaintiff, defendant was negligent in its design of its recreation trail in Onondaga Lake Park, and “[t]here is no evidence in the record that any design changes were made subsequent to the subject accident which would impede [defendant's] ability to investigate [plaintiff's] claim” (McHugh, 293 A.D.2d at 478, 739 N.Y.S.2d 449;  see Haeg, 30 A.D.3d at 520-521, 817 N.Y.S.2d 125;  see also Matter of Bitetto v. City of Yonkers, 13 A.D.3d 367, 368, 785 N.Y.S.2d 745;  Greene, 273 A.D.2d 895, 709 N.Y.S.2d 767).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: