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Matter of Brooks v Town of N. Hempstead 2012 NY Slip Op 31354(U) May 8, 2012 Supreme Court, Nassau County Docket Number: 17003/11 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13

In the Mater of the Application of

SHERRY BROOKS,
Petitioner
- against -

Inde)( No: 17003/11

DECISION AND ORDER
Motion Sequence No: 001

TOWN OF NORTH HEMPSTEAD
Respondent.

Original Retu

Date: 12- 22-

PRESENT:

HON. JOEL K. ASARCH,

Justice of the Supreme Court.
The following named papers numbered 1 to 5 were submitted on this Notice of Motion on March 2012: Papers numbered
Order to Show Cause , Affirmation and Affidavit Affirmation in Opposition Reply Affrmation
This proceeding by the petitioner , Sherr Brooks , for an Order pursuant to General
Law

Municipal

50-e(5), granting her leave to serve a late Notice of Claim upon the respondent

, Town of North

Hempstead is decided as follows.
Briefly, this action arises out of a trip and fall accident that took place on September 24
at or about 4:00 p. m.

2010

when the petitioner , while crossing the street at

Prospect Avenue and

Maplewood Drive in Westbur, New York , allegedly was caused to step into a hole in the street
resulting in serious personal injuries. She claims that her consequent fall to the ground was a result

of the dangerous and defective condition.

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On December 22 , 2010 , petitioner served Notices of Claim upon the County of Nassau

, the

Town of Hempstead and the Incorporated Vilage

of Westbury.

Subsequently, on September 27,
, counsel for the petitioner states

2011 , a 50- h hearing was held. In support of the instant application

that at her muncipal law hearing, petitioner s testimony provided specific information as to the
location of the accident and that it was at that point that he determined that the

occurence took place

at or near two adjoining towns , to wit: the Town of Hempstead and the Town of North Hempstead.
Accordingly, on December

2011 petitioner served a Notice of Claim upon the Town of North

Hempstead. Said Notice of Claim was rejected by the Town.
With this application dated December 7 , 2011 , petitioner seeks leave to
fie and serve a

late

Notice of Claim upon the Town of North Hempstead.
In opposition to the motion, the Town of North Hempstead asserts

thee principal arguents.

First , the Brooks ' petition is brought almost 12 months after the initial 90 days within which the
Notice of Claim should have been filed and 16 days before the e)(piration of
the one year and 90 days

statute of limitations. Second , given that the claimant has lived within blocks of the accident site for

40 years and who testified at her 50-h hearing that she was "

familar with the general area of the
" she fell in the Town

accident " her claim that she " could not determine as a matter of fact whether

of Hempstead or the Town of North Hempstead is "uneasonable
In Opp.

, insuffcient and incredible " (Aff.

4). Lastly, according to the petitioner s testimony, the roadway has since been resuraced
condition has been repaired and corrected; thus , the e)(traordinar
delay has

and the alleged defective

prejudiced the Town s investigation of the claim.

Pursuant to General Municipal Law ~ 50-e(5), this Cour may permit the
Notice of Claim under certain circumstances. The statute reads:

service of a late

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5. Application for leave to serve a late notice.

, may e)(tend the time to serve a notice of determining claim specified in paragraph (a) of subdivision one of this section. * * whether the public * * In , in paricular , whether to grant the e)(tension , the cour shall consider actual knowledge ofthe essential corporation or its attorney or its insurance carer acquired facts constituting the claim within the time specified in subdivision one of this section or The cour shall also consider all other relevant facts and
1. Upon application , the court , in its discretion
within a reasonable time thereafter

circumstaces , including: whether the claimant was an infant

, or mentally or physically

incapacitated , or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon

its insurance carer; whether the claimant in serving a notice of claim made an error concerning the identity of the public corporation against which the claim should be . asserted; if service of the notice ' of claim is attempted by electronic means pursuant to , whether the delay in serving the notice of paragraph (e) of subdivision three of this section claim was based upon the failure of the computer system of the city or the claimant or the attorney, as the case may be
attorney representing the claimant; that such claimant or

settlement representations made by an authorized representative of the public corporation e)(cusable

submitted evidence or proof as is reasonable showing that (i) the submission of the claim was maner and would have been completed but attempted to be electronically made in a timely , and (ii) that upon for the failure of the computer system utilzed by the sender or recipient receive such becoming aware of both the failure of such system and the failure of the city to submission , the claimant or attorney had insufficient time to make such claim within the permitted time period in a maner as otherwise prescribed by law; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

Thus , in this case , the relevant factors for the Cour to consider

include (1) proof that the
days from

municipality acquired actual knowledge of the facts constituting the claim within ninety
its accrual or a reasonable time thereafter , (2), whether the application provides a reasonable e)(cuse

for failing to serve a timely notice of claim, and (3) a showing of whether the delay

substantially

prejudices the municipality in maintaining its defense
5O-(5); Matter oj Padovano v.

on the merits (General Municipal

Law
Dept.

Massapequa Union Free School Dist. 31 AD3d 563 (2

2006), citing Willams

v.

, while a Nassau County Med. Ctr. 6 NY3d 531 (2006)). Furhermore
be

balancing test of all the relevant factors wil

employed by this Court in deciding whether to grant

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the instant application , the most irnportant factor remains the respondent'

s actual knowledge of the

essential facts constituting the petitioner s claim and whether it was acquired within the ninety day
time period to file a Notice of Claim or within a reasonable time after the

ruing of the time to fie
others; none of the

a Notice of Claim. Indeed , the statute sets this one factor apar from all the
remaining factors are "necessarly
Dept. 2007)).

determinative

(Casias

v.

City of New York 39 AD3d 681 (2

In that regard

, this Cour notes

that here ,

there is no indication in the record that the

respondent Town of Nort Hempstead had actual knowledge of the facts essential to the claim within

90 days of the accident or a reasonable time thereafter. " What satisfies the statute is not knowledge
of the wrong but notice of the clairn. The municipality must have notice or
claim and not general knowledge that a wrong has been committed"

knowledge of the specific
v.

(Matter of Sica

Board of

, petitioner s argument in reply that Educ. oj City oj NY. 226 AD2d 542 (2 Dept. 1996)). Thus
knowledge of the e)(istence of its contract with a private company for the repair and paving of roads

in the Town , including the road upon which Petitioner allegedly slipped and fell

, demonstrates that

the work was necessar is entirely unavailing. The e)(istence of a contract and knowledge of repair

work being performed does not evidence notice of the petitioner s claim.
Petitioner argues that:

The very fact that the TOWN OF NORTH HEMPSTEAD e)(ecuted

the contract (with

Anthony Enterprises for the repair and paving of certain roads in the Town)

clearly

demonstrates... (the Town) knew that the work was being preformed (sic) on roadways in they had access their Town , which included the roadways where Petitioner had her fall(, the work preformed (sic) and stil have access to any and all work records and daily logs for was ongoingL)... (and thus) by the contractor showing the condition ofthe roads as.th job whatsoever demonstrated by the Respondent in this no prejudice
there is absolutely

proceeding. (Reply Aff.,

5f.

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This argument is without merit.

This Cour is not persuaded that the petitioner , having been represented by counsel at all
times , did not know that the accident site was within the Town of North Hempstead. The petitioner

failure to ascertain the respondent's ownership and/or maintenance of the accident site does not
constitute a reasonable e)(cuse , since she has failed entirely to demonstrate that either she or her
counsel made any effort to investigate or research the ownership and maintenance issue in the first
v. place (Bridgeview at Babylon Cove Homeowners Assn., Inc.

Incorporated Vii. of Babylon , 41

AD3d 404 405-406 (2
2003)).

Dept. 2007);

Matter oj Nieves

v.

Girimonte 309 AD2d 753 , 754 (2 Dept.

Nonetheless, even assuming that the petitioner s erroneous beliefthat the accident site was

within the Town of Hempstead constitutes a reasonable e)(cuse for her delay
Town oj Oyster Bay,

(Matter of Flynn

256 AD2d 341 (2

Dept. 1998);

Matter oj Goldberg

v.

County oj Suffolk , 227

AD2d 482 (2 Dept. 1996)), the fact is that the respondent did not have any notice of the facts
underlying the petitioner s claim until she sought leave to serve a late Notice of Claim upon them.

Furermore , given the transitory nature of the alleged defect in the pavement of the street
this Cour concludes
that the delay herein has indeed prejudiced

the respondent's abilty to
(Papayannakos v.

investigate the defect and other circumstances surounding the accident

Levittown

Mem. Special Educ. Ctr. 38 AD3d 902 , 903 (2
York 268 AD2d 588 (2

Dept. 2007);

Matter oj Gofman

v.

City oj New

Dept. 2007)).

Therefore , after due deliberation , it is

ORDERED , that the motion by petitioner , Sherr Brooks , for an Order pursuant to General

. Municipal Law ~50-e(5), granting her leave to serve a late Notice of Claim upon the respondent

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Town of North Hempstead is denied.
The paries '

remaining contentions have been considered and do not warant discussion.

This shall constitute the Decision and Order of the Cour.
Dated: Mineola, New York May 8 , 2012
ENTER:

Copies mailed to:
Leo Tekiel , Esq.

INTERED
MAY 11 2012

Attorneys for Petitioner
Richard S. Finkel , Esq. Attorneys for Respondent

NAHAU COUNTY
COUNTY CL!RtrS OFFIC!



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