FEE v. COUNTY OF NASSAU (2000)

In an action to recover damages for personal injuries, the defendant County of Nassau appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated January 21, 1999, which granted the plaintiff's application for leave to serve a late notice of claim upon the County of Nassau pursuant to General Municipal Law § 50-e(5).

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the application is denied.

 When a plaintiff is seeking leave to serve a late notice of claim, the court must consider whether the plaintiff has demonstrated a reasonable excuse for his or her failure to serve a timely notice of claim, whether the municipality to be served acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e[1] ) or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, Matter of Shapiro v. County of Nassau, 208 A.D.2d 545, 616 N.Y.S.2d 786;  Levette v. Triborough Bridge & Tunnel Auth., 207 A.D.2d 330, 615 N.Y.S.2d 421;  Carbone v. Town of Brookhaven, 176 A.D.2d 778, 575 N.Y.S.2d 105).

 The plaintiff failed to proffer an adequate explanation for the delay in filing an application for leave to serve a late notice of claim.   Furthermore, the County did not have actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, and the delay prejudiced its ability to maintain its defense on the merits (see, Matter of Galluccio v. City of New York, 247 A.D.2d 473, 667 N.Y.S.2d 953;  Matter of Rudisel v. City of New York, 217 A.D.2d 702, 630 N.Y.S.2d 259;  Leszczynska v. City of New York, 207 A.D.2d 329, 615 N.Y.S.2d 420;  Messina v. City of New York, 190 A.D.2d 659, 593 N.Y.S.2d 72;  Carbone v. Town of Brookhaven, supra;  Herman v. Town of Huntington, 173 A.D.2d 681, 570 N.Y.S.2d 335).

MEMORANDUM BY THE COURT.