HACK v. CITY OF SYRACUSE

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

Elsie P. HACK, Appellant, v. CITY OF SYRACUSE, City of Syracuse Fire Department and George Wagner, Respondents.  (Appeal No. 1.)

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, BALIO and FALLON, JJ. James G. DiStefano, Syracuse, for plaintiff-appellant. Office of Corporation Counsel by Sheila Finn, Syracuse, for defendants-respondents.

Supreme Court abused its discretion in denying plaintiff's motion to extend the time to serve a notice of claim pursuant to General Municipal Law § 50-e(5) (see, Matter of Halperin v. City of New York, 127 A.D.2d 461, 462-463, 511 N.Y.S.2d 273;  see also, Matter of Cody v. Village of Lake George, 158 A.D.2d 888, 889, 551 N.Y.S.2d 683).   The requirements of that section were met.   The City of Syracuse (defendant) acquired actual knowledge of the facts from which the claim arose through plaintiff's timely service of a notice of claim for property damage within two days after the occurrence of the automobile accident involving one of defendant's vehicles (see, General Municipal Law § 50-e[5] ), and plaintiff alleged that the nature and extent of her injuries were unknown to her at that time.   There was no substantial prejudice to defendant resulting from the absence of notice for 10 months that plaintiff's damages included personal injuries (see, Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025, 1026, 409 N.Y.S.2d 312;  see also, Raizner v. City of New York, 174 A.D.2d 423, 424, 571 N.Y.S.2d 226;   Passalacqua v. County of Onondaga, 94 A.D.2d 949, 464 N.Y.S.2d 73).   In any event, defendant may demand an examination pursuant to General Municipal Law § 50-h (see generally, Allouette Fashions v. Consolidated Edison Co. of N.Y., 119 A.D.2d 481, 487, 501 N.Y.S.2d 23, affd. 69 N.Y.2d 787, 513 N.Y.S.2d 114, 505 N.E.2d 624;  Matter of Wemett v. County of Onondaga, supra, at 1026, 409 N.Y.S.2d 312).

Order unanimously reversed on the law without costs and motion granted.

MEMORANDUM: