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

711/15
CA 14-01919
PRESENT: WHALEN, P.J., CENTRA, CARNI, AND SCUDDER, JJ.


IN THE MATTER OF JAMES R. DIEGELMAN AND
ANDREA M. DIEGELMAN, CLAIMANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO AND CITY OF BUFFALO BOARD OF
EDUCATION, RESPONDENTS-APPELLANTS.


TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE 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, Erie County (John P.
Lane, J.H.O.), entered January 16, 2014. The order granted the
application of claimants for leave to serve a late notice of claim.
The order was reversed by order of this Court entered June 12, 2015 in
a memorandum decision (129 AD3d 1527), and claimants on December 15,
2015 were granted leave to appeal to the Court of Appeals from the
order of this Court (26 NY3d 913), and the Court of Appeals on
November 21, 2016 reversed the order and remitted the case to this
Court for consideration of issues raised but not determined on the
appeal to this Court (28 NY3d 231).

     Now, upon remittitur from the Court of Appeals and having
considered the issues raised but not determined on the appeal to this
Court,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, 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. We
previously held that the application should have been denied as
patently without merit on the ground that the claim was barred by
General Municipal Law § 207-c, but the Court of Appeals concluded that
the claim was not so barred (Matter of Diegelman v City of Buffalo, 28
NY3d 231, revg 129 AD3d 1527). The Court therefore reversed our order
and remitted the matter to this Court “for consideration of issues
raised but not determined on the appeal” (id. at 241). We now
conclude that Supreme Court did not abuse its discretion in granting
claimants’ application.
                                 -2-                        711/15
                                                         CA 14-01919

     The proposed notice of claim states that the claim is for
personal injuries sustained by James R. Diegelman (claimant) during
his employment as a police officer by respondent City of Buffalo.
Claimants allege that claimant suffers from metastatic malignant
mesothelioma as the result of his exposure to asbestos at several
locations owned by respondents. Claimants submitted evidence that
their application was made within one year and 90 days after the claim
accrued (see General Municipal Law § 50-e [1] [a]; [5]; § 50-i), i.e.,
upon claimant’s diagnosis (see CPLR 214-c [2]; Matter of New York
County DES Litig., 89 NY2d 506, 508-509). In determining whether to
grant claimants’ application, the court was required to consider “all
relevant facts and circumstances,” including the “nonexhaustive list
of factors” in section 50-e (5) (Williams v Nassau County Med. Ctr., 6
NY3d 531, 539; see Matter of Newcomb v Middle Country Cent. Sch.
Dist., 28 NY3d 455, 460-461). “[T]he presence or absence of any one
of the numerous relevant factors the court must consider is not
determinative” (Salvaggio v Western Regional Off-Track Betting Corp.,
203 AD2d 938, 938-939). The three main factors are whether the
claimants have shown a reasonable excuse for the delay, whether
respondents had actual knowledge of the facts surrounding the claim
within 90 days of its accrual “or within a reasonable time
thereafter,” and whether the delay would cause substantial prejudice
to the municipality (§ 50-e [5]; see Dalton v Akron Cent. Schs., 107
AD3d 1517, 1518, affd 22 NY3d 1000).

     Here, even assuming, arguendo, that claimants failed to provide a
reasonable excuse for their delay, we conclude that the remaining
factors support the court’s exercise of discretion in granting their
application. Although respondents did not obtain knowledge of the
facts underlying the claim until approximately nine months after the
expiration of the 90-day period, we conclude under the circumstances
of this case that “this was a reasonable time, particularly in light
of the fact that respondent[s] do[ ] not contend ‘that there has been
any subsequent change in the condition of the [premises] which might
hinder the investigation or defense of this action’ ” (Matter of
Edwards v Town of Delaware, 115 AD2d 205, 206). Moreover, claimants
made a sufficient showing that the late notice will not substantially
prejudice respondents, and respondents failed to “respond with a
particularized evidentiary showing that [they] will be substantially
prejudiced if the late notice is allowed” (Newcomb, 28 NY3d at 467).
We therefore conclude that the court “properly exercised its broad
discretion in granting [claimants’] application pursuant to General
Municipal Law § 50-e (5)” (McBee v County of Onondaga, 34 AD3d 1360,
1360).




Entered: March 24, 2017                         Frances E. Cafarell
                                                Clerk of the Court
