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WHERE THE MUNICIPALITY HAS TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT AND HAS CONDUCTED A TIMELY INVESTIGATION INTO THE ALLEGATIONS, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT BE DENIED SOLELY BECAUSE PETITIONER DOES NOT HAVE A REASONABLE EXCUSE FOR FAILING TO FILE ON TIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim against the town should have been granted. Petitioner was convinced a neighbor had trapped her cat and taken the cat to the town animal shelter. She communicated with the shelter many times and ultimately petitioner sought to sue the town for conversion and replevin. The Second Department determined the late notice of claim would not prejudice the town because the town was aware of petitioner’s’ claims from the beginning and had conducted investigations of those claims. The fact that petitioner did not have a reasonable excuse for failing to file a timely notice of claim did not justify denying leave to file:

Although the petitioner failed to establish a reasonable excuse for her delay in seeking leave to serve a late notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Anghel v Town of Hempstead, 2024 NY Slip Op 00420, Second Dept 1-31-24

Practice Point: This case illustrates that the most important factor in whether leave to file a late notice of claim against a municipality should be granted is whether the municipality had timely knowledge of the nature of the claim. Where there has been timely knowledge and a timely investigation by the municipality, the absence of a reasonable excuse for failure to timely file the notice of claim will be ignored.

 

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