Thursday, May 15, 2014

An application to file a late notice of claim.

Practice point:  The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court. Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense.

Student note: Neither the presence nor absence of any one factor is determinative. While the absence of a reasonable excuse is not necessarily fatal, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance.

Case: Bakioglu v Tornabene, NY Slip Op 03219 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Jurisdiction of the Court of Claims.