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LEAVE TO FILE LATE NOTICE OF CLAIM FOR HUSBAND’S DERIVATIVE CLAIM SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim with respect to husband’s derivative claim stemming from wife’s injuries should have been granted. Because the county was deemed to have knowledge of the wife’s claim within 90 days, the county must also be deemed to have had timely knowledge of the derivative claim:

Here, respondent contends that it did not receive actual knowledge of the facts constituting the husband’s claim because it did not receive knowledge of the injuries or damages claimed by the husband. We reject that contention. “[C]ourts have granted leave to serve a supplemental or amended notice of claim to add a derivative cause of action for loss of consortium . . . where such claim results from the same facts as were alleged in a timely and otherwise admittedly valid notice of claim for personal injuries’ “… . Indeed, courts have generally recognized that derivative causes of action “[are] predicated upon exactly the same facts” as the injured party’s claims … . As a result, where it has been determined that the respondent received timely notice of the injured claimant’s claims, “there can be no claim of prejudice to respondent” resulting from a late notice of a derivative claim (id.).

Although we recognize that claimants did not file a timely notice of claim for the injuries sustained by claimant Melody L. Darrin (wife), the court’s determination to grant the application with respect to her suggests that the court determined that respondent had actual knowledge of the facts underlying her claim. Inasmuch as the husband’s derivative claim is “predicated upon exactly the same facts” as the wife’s claims … , we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband … . Matter of Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, 4th Dept 6-30-17

 

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