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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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