Shane v. Central New York Regional Transportation Authority

Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered January 25, 2010. The order denied the motion of plaintiff for leave to file and serve a late notice of claim. It is hereby ordered that the order so appealed from is reversed on the law without costs and the application is granted upon condition that the proposed notice of claim is served within 20 days of the date of entry of the order of this Court. 1821 Memorandum: We conclude that Supreme Court abused its discretion in denying plaintiffs application for leave to serve a late notice of claim. Plaintiff offered a reasonable excuse for the delay in serving a notice of claim because she was unaware of the severe or permanent nature of her injuries until after the statutory time period had elapsed (see Matter of Greene v Rochester Hous. Auth., 273 AD2d 895 [2000]; More v General Brown Cent. School Dist., 262 AD2d 1030 [1999]; Matter of Esposito v Carmel Cent. School Dist., 187 AD2d 854 [1992]). In any event, the failure to offer an excuse for the delay “is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [defendants]” (Matter of Hall v Madison-Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435 [2009] [internal quotation marks omitted]). The record establishes that defendants had actual knowledge of the motor vehicle accident at issue because defendants paid plaintiffs property damage claim. Once defendants were notified of plaintiffs property damage claim, they should have conducted a prompt investigation of the accident (see Matter of Trotman v Rochester City School Dist., 67 AD3d 1484 [2009]). “Having failed to do so, [defendants] cannot now be heard to complain that the late filing of [the] claim will prejudice [their] preparation of a defense” (id. at 1485 [internal quotation marks omitted]). All concur except Garni and Lindley, JJ., who dissent and vote to affirm in the following memorandum.