        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1172
CA 16-00597
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


GORDON J. KING AND BRENDA KING,
CLAIMANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NIAGARA FALLS WATER AUTHORITY AND NIAGARA
FALLS WATER BOARD, RESPONDENTS-APPELLANTS.


RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR CLAIMANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered July 7, 2015. The order granted the application
of claimants for leave to serve a late notice of claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondents appeal from an order that granted
claimants’ application for leave to serve a late notice of claim
pursuant to General Municipal Law § 50-e (5). On April 18, 2014,
Gordon J. King (claimant) allegedly sustained injuries after his motor
vehicle struck a depression in a roadway in the City of Niagara Falls
(City). Claimants filed a timely notice of claim against the City,
among others, and thereafter commenced a negligence action against
them. In February 2015, in response to a Freedom of Information Law
request, the City provided claimants with a copy of a permit, issued
February 26, 2014, for the replacement of a water line in the vicinity
of the accident. The permit listed respondent Niagara Falls Water
Board (Water Board) as the general contractor on the project. On
April 17, 2015, claimants applied for leave to serve a late notice of
claim upon respondents.

     Contrary to respondents’ contention, Supreme Court did not abuse
its discretion in granting claimants’ application. The decision
whether to grant such an application requires the court to consider
several factors, none of which is determinative (see General Municipal
Law § 50-e [5]; Dalton v Akron Cent. Schs., 107 AD3d 1517, 1518, affd
22 NY3d 1000). “The three main factors are ‘whether the claimant has
shown a reasonable excuse for the delay, whether the [governmental
entity] had actual knowledge of the facts surrounding the claim within
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                                                         CA 16-00597

90 days of its accrual, and whether the delay would cause substantial
prejudice to the [governmental entity]’ ” (Dalton, 107 AD3d at 1518;
see generally § 50-e [5]). An “[e]rror concerning the identity of the
governmental entity to be served” can constitute a reasonable excuse
for the delay “provided that a prompt application for relief is made
after discovery of the error” (Matter of Farrell v City of New York,
191 AD2d 698, 699; see Santana v Western Regional Off-Track Betting
Corp., 2 AD3d 1304, 1305, lv denied 2 NY3d 704). “The court is vested
with broad discretion to grant or deny the application” (Wetzel Servs.
Corp. v Town of Amherst, 207 AD2d 965, 965) and, “absent a clear abuse
of the . . . court’s broad discretion, the ‘determination of an
application for leave to serve a late notice of claim will not be
disturbed’ ” (Matter of Hubbard v County of Madison, 71 AD3d 1313,
1315; see Dalton, 107 AD3d at 1518).

     Here, claimants demonstrated a reasonable excuse for the delay
inasmuch as they served a timely notice of claim upon the City, and
then promptly applied for leave to serve a late notice of claim upon
respondents after discovering respondents’ alleged involvement in
causing claimant’s injuries (see Matter of Ruffino v City of New York,
57 AD3d 550, 551; cf. Santana, 2 AD3d at 1305). Furthermore, although
respondents lacked actual knowledge of claimant’s injuries,
respondents have “ ‘made no particularized or persuasive showing that
the delay caused [them] substantial prejudice’ ” (Shaul v Hamburg
Cent. Sch. Dist., 128 AD3d 1389, 1389). Indeed, we note that the
Water Board was the general contractor for the construction project
that allegedly created the defect in the roadway, and thus
respondents’ ability to investigate the facts underlying the claim is
furthered by their possession of documents and other information
related to the construction project. Under the particular
circumstances of this case, we cannot conclude that there was a clear
abuse of the court’s broad discretion (see generally Dalton, 107 AD3d
at 1518).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
