IN RE: Charles MARCH (2006)

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the petitioners appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated June 30, 2005, which denied the petition.

 ORDERED that the order is reversed, on the law and as an exercise of discretion, with costs, the petition is granted, and the proposed notice of claim is deemed served.

 The three key factors to be considered in evaluating an application for leave to serve a late notice of claim are “(1) whether the movant has a reasonable excuse for the failure to serve a timely notice of claim, (2) whether the municipality or agency acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) whether the delay would substantially prejudice the municipality in its defense” (Matter of Conroy v. Smithtown Cent. School Dist., 3 A.D.3d 492, 493, 770 N.Y.S.2d 428;  see Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 769 N.Y.S.2d 596;  Matter of DiBella v. City of New York, 234 A.D.2d 366, 650 N.Y.S.2d 311).   The Supreme Court improvidently exercised its discretion in denying leave to serve the late notice of claim, as the record clearly indicates that the respondent Town of Wappinger received timely actual knowledge of the facts constituting the subject nuisance claim (see Hale v. Webster Cent. School Dist., 12 A.D.3d 1052, 784 N.Y.S.2d 449;  Matter of National Sur. Corp. v. Town of Greenburgh, 266 A.D.2d 550, 551, 699 N.Y.S.2d 128;  Matter of Battle v. City of New York, 261 A.D.2d 614, 615, 690 N.Y.S.2d 698).

Moreover, since the Town received timely knowledge of the facts constituting the claim, any limitation on the opportunity to investigate the cause of the flooding in the appellants' basement resulted from the Town's own dilatory conduct and not from the delay in service of the notice of claim.   Consequently, the Town's claim that it will be prejudiced in maintaining its defense on the merits at this juncture is unavailing (see Barnes v. New York City Hous. Auth., 262 A.D.2d 46, 47, 691 N.Y.S.2d 463;  Walter v. State of New York, 235 A.D.2d 623, 625, 651 N.Y.S.2d 704;  Matter of Turner v. City of New York, 203 A.D.2d 294, 612 N.Y.S.2d 894;  cf. Corrales v. Middle Country Cent. School Dist., 307 A.D.2d 907, 762 N.Y.S.2d 908;  Matter of Ryder v. Garden City School Dist., 277 A.D.2d 388, 389, 716 N.Y.S.2d 97).

Lastly, although the appellants' ignorance of the requirements of General Municipal Law § 50-e is no excuse for not timely filing a notice of claim (see Matter of Winston v. City of New York, 249 A.D.2d 404, 670 N.Y.S.2d 363;  Matter of James v. City of New York, 242 A.D.2d 630, 662 N.Y.S.2d 542), the absence of a reasonable excuse for the 11-month delay is not necessarily fatal to this application for leave to serve a late notice of claim when balanced against the lack of prejudice to the municipality and the fact that the municipality obtained actual knowledge of the facts constituting the claim within the 90-day statutory period or a reasonable time thereafter (see Matter of Johnson v. City of New York, 302 A.D.2d 463, 756 N.Y.S.2d 67;  Hayden v. Incorporated Vil. of Hempstead, 103 A.D.2d 765, 766, 477 N.Y.S.2d 392).