Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Gonzalez v. County of Nassau

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


December 2, 2008

FRANKLIN R. GONZALEZ, ETC., RESPONDENT,
v.
COUNTY OF NASSAU, APPELLANT.

In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), entered June 20, 2007, as denied that branch of its motion which was to dismiss the complaint for failure to serve a timely notice of claim, and granted that branch of the plaintiff's cross motion which was for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, STEVEN W. FISHER & RANDALL T. ENG, JJ.

(Index No. 193/07)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

In exercising its discretion in determining whether to permit late service of a notice of claim, a court must consider all relevant circumstances, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e; Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135; Arias v New York City Health & Hosps. Corp., 50 AD3d 830, 831). The presence or absence of any one factor, including the absence of a reasonable excuse, is not necessarily fatal (see Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135).

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff's cross motion which was for leave to serve a late notice of claim.

MASTRO, J.P., RIVERA, FISHER and ENG, JJ., concur.

20081202

© 1992-2008 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.