Bartolotta v. County of Wyoming

Order unanimously reversed on the law with costs, motion denied as unnecessary and cross motion denied. Memorandum: Supreme Court should have denied claimants’ motion for permission to file a late notice of claim as unnecessary because the notice was timely filed. Claimants mailed a notice of claim to the Town Clerk of the Town of Wethersfield (Town) on May 17,1993 by certified mail, properly placing the notice in a depository of the United States Postal Service. It is undisputed that the notice of claim was timely mailed within 90 days of the accrual of the claim. The Postal Service made two attempts to deliver the certified mailing, but on each occasion, the Town Clerk failed either to accept or to claim the mailing, which was then returned to claimants. Claimants’ motion is in response to the position of the Town that, because it never received the notice of claim, it was not timely served. Service of a notice of claim by certified mail is complete when, as here, the notice is placed in a depository of the Postal Service (see, General Municipal Law § 50-e [3] [b]; see also, Matter of Lamica v Malone Cent. School Dist., 180 AD2d 885, 886; Krieger v City of New York, 118 Misc 2d 537; Desroches v Caron, 11 Misc 2d 838). A municipality may not defeat service by failing to accept or claim delivery of the certified mailing. (Appeal from Order of Supreme Court, Wyoming County, Francis, J.—Late Notice of Claim.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.