Kissell v. County of Erie

Order unanimously reversed on the law with costs and motion granted. Memorandum: Special Term erred in denying claimant’s motion for leave to file a late notice of claim. Following an in camera inspection of the claimant’s expert’s report, the court determined that there was "no issue of law or fact sufficient to support the proposed claim”. Broad discretion is vested in the courts pursuant to General Municipal Law § 50-e (5) to grant extensions of time within which to file a notice of claim (Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, 426, affd 51 NY2d 957). Various factors are set forth in the statute for the court’s consideration and, while the listed factors are directive rather than exclusive, a showing of merit is not enumerated (Passalacqua v County of Onondaga, 94 AD2d 949). In any event, claimant has made a showing of merit. Claimant contends that the injuries he suffered in an automobile accident were the result of the county’s negligence in failing to maintain the roads properly and rectify a dangerous condition on Two Rod Road. He alleges that the county had notice of that dangerous condition because it was the site of numerous prior accidents. Further, claimant claims that the county will not be prejudiced by the granting of leave to serve a late notice of claim. The county did not submit any affidavits in opposition to plaintiff’s motion. Under these circumstances plaintiff’s application should have been granted (Passalacqua v County of 966 Onondaga, supra; Matter of Wemett v County of Onondaga, 64 AD2d 1025). (Appeal from order of Supreme Court, Erie County, Mintz, J. — late notice of claim.) Present — Doerr, J. P., Denman, Green, Pine and Lawton, JJ.