You are here: / / Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave...
, ,

Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained

The Second Department determined petitioner’s application for leave to file a late notice of claim was properly denied, as was petitioner’s request for discovery prior to the hearing.  The court explained the relevant analytical criteria:

In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure …, although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality … . Contrary to the petitioners’ contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding … .

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). The injured petitioner’s assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed … . * * *

In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter … . * * *

Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted … . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15

 

You might also like
FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL.
PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE UNDER THE DOCTRINE OF RES IPSA LOQUITUR, DEFENDANTS RAISED QUESTIONS OF FACT ABOUT THE CAUSE AND EXCLUSIVE CONTROL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SEOND DEPT).
THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).
CONTRACTOR WHICH REPAIRED EXTERIOR STAIRS DID NOT OWE A DUTY OF CARE TO PLAINTIFF IN THIS SLIP AND FALL CASE.
LANDLORD DID NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY.
THE JUDGE DID NOT HOLD A COMPETENCY HEARING IN VIOLATION OF THE MANDATED PROCEDURES IN CRIMINAL PROCEDURE LAW ARTICLE 730; MATTER REMITTED FOR A RECONSTRUCTION HEARING (SECOND DEPT). ​
Gaps in Treatment Precluded “Continuous Treatment Doctrine” in Medical Malpractice Suit—Action Time-Barred
Sole Proximate Cause of Plaintiffs’ Injuries Should Have Been Determined as a Matter of Law—Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver’s Car) Should Have Been Dismissed

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant... Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate...