You are here: / / MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS...
, , ,

MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined petitioner’s motion to renew the petition for leave to file a late notice of claim was erroneously deemed a motion to reargue (by Supreme Court) and was erroneously denied. Leave to file a late notice of claim should have been granted. The wrongful death action was brought on behalf of a county worker who was killed when he fell off the back of a dump truck after the truck allegedly struck a bump in the road. The Second Department noted: (1) the 90-day period for filing a notice of claim runs from the appointment of the administrator of decedent’s estate; (2) the motion presented new evidence which was not previously available and was therefore a motion to renew, not reargue; (3) the county had notice of the facts of the action within the 90-day period; (4) the county did not demonstrate prejudice related to the delay in filing the notice of claim (even though the road defect had been repaired):

The County acquired actual knowledge of the essential facts constituting the claim before a representative of the estate was appointed. The [police department] conducted an investigation, took photographs of, inter alia, the subject roadway condition, obtained a statement from the driver of the truck, and prepared a case report that detailed the nature and the alleged cause of the accident. In addition, … Inasmuch as the County acquired timely, actual knowledge of the essential facts of the claim and actually conducted an investigation, the petitioner made an initial showing that the County was not prejudiced by his delay in serving a notice of claim … . The County claims that it will nonetheless be prejudiced by the delay because the roadway where the accident occurred has been repaved and because it will be unable to locate witnesses. The County, however, had recognized the need for repairs of the roadway before the petitioner was appointed as administrator, and it issued work orders to repair the roadway only a few days after the petitioner was appointed. Thus, any prejudice resulting from the changed condition of the road was not caused by the petitioner’s delay in serving a notice of claim … . In any event, the County took photographs of the defect and inspected the location after the accident … . The County also failed to make a showing that any of the witnesses are unavailable. Thus, the County failed to respond to the petitioner’s initial showing as to lack of prejudice with a particularized showing that the petitioner’s delay in serving a notice of claim will prejudice it in its defense on the merits … . Matter of Kerner v County of Nassau, 2017 NY Slip Op 04277, 2nd Dept 5-31-17

MUNICIPAL LAW (MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRUSTS AND ESTATES (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO RENEW, MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS  (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

You might also like
PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).
ATTORNEY ENTITLED TO THE REMAINDER OF HER FEE UNDER AN ACCOUNT STATED THEORY (SECOND DEPT).
Lawsuit Prohibited by Unambiguous Release
DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).
TO BE ENFORCABLE, AN AGREEMENT TO ARBITRATE MUST BE CLEAR, EXPLICIT AND UNEQUIVOCAL; HERE THE WORD “DISAGREEMENTS” IN THE ARBITRATION CLAUSE WAS TOO VAGUE AND AMBIGUOUS TO REQUIRE PLAINTIFF TO ARBITRATE HER CLAIMS OF UNPAID COMMISSIONS AND WRONGFUL TERMINATION (SECOND DEPT).
POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT).
HOMEOWNERS’ ASSOCIATIONS IN THE HAMPTONS DEMONSTRATED OWNERSHIP OF THE BEACH TO THE HIGH WATER MARK; THE TOWNS THEREFORE COULD NOT ISSUE PERMITS ALLOWING VEHICLES ON THE BEACH (SECOND DEPT).
THE PROCESS SERVER IN THIS FORECLOSURE ACTION MET THE DUE DILIGENCE REQUIREMENTS OF CPLR 308 (4); THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

Categories

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

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL... DEFENDANT, WHO COLLIDED WITH PLAINTIFF AFTER PLAINTIFF CROSSED INTO DEFENDANT’S...