Innes v. County of Genesee

Order reversed, with costs, and motion granted. Memorandum: Special [643] Term abused its discretion in denying plaintiff’s application to file a late notice of claim. Plaintiff, 19 years of age at the time of the accident, suffered serious injuries and spent five and one-half weeks in the hospital and thereafter was disabled until March 15, 1983, well beyond the 90-day limitation period imposed by section 50-e of the General Municipal Law. The accident occurred on a public road that is owned by the defendant, Town of Stafford (Town), and had been reconstructed by the defendant, County of Genesee (County). Plaintiff alleged that the accident resulted from the negligent design and maintenance of the road. The accident was investigated by a County deputy sheriff within minutes and his report noted that plaintiff was unable to see the other vehicle because of the contour of the road (see Matter of Wemett v County of Onondaga, 64 AD2d 1025, 1026). Thus defendants acquired actual knowledge of all the facts relevant to plaintiff’s claim shortly after the claim arose (see Matter of Somma v City of New York, 81 AD2d 889; Matter of Jakubowicz v Dunkirk Urban Renewal Agency, 75 AD 2d 1019). Defendants have presented no evidence that the condition of the road is any different now than it was at the time of the accident and have failed to establish that they would be prejudiced if plaintiff’s application is granted (see Passalacqua v County of Onondaga, 94 AD2d 949). Therefore, plaintiff’s application to file a late notice of claim should have been granted (see Matter of Bowen v Salamanca Dist. Hasp. Auth., 99 AD2d 658). All concur, except Boomer and Moule, JJ., who dissent and vote to affirm, in the following memorandum.