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Collado v. NYC Department of Sanitation

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


January 13, 2009

IN THE MATTER OF FERNANDO COLLADO, ET AL., APPELLANTS,
v.
NYC DEPARTMENT OF SANITATION, ET AL., RESPONDENTS.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the City of New York, the petitioners appeal (1) from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated February 4, 2008, which denied the petition, and (2), as limited by their brief, from so much of an order of the same court dated June 12, 2008, as, upon reargument, adhered to the original determination.

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.

PETER B. SKELOS, J.P., STEVEN W. FISHER, HOWARD MILLER and EDWARD D. CARNI, JJ.

(Index No. 17915/07)

DECISION & ORDER

ORDERED that the appeal from the order dated February 4, 2008, is dismissed, as that order was superseded by the order dated June 12, 2008, made upon reargument; and it is further,

ORDERED that the order dated June 12, 2008, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and, upon reargument, the order dated February 4, 2008, is vacated and the petition is granted; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

Pursuant to General Municipal Law § 50-e(5), a court may, as a matter of discretion, extend the time for a petitioner to serve a notice of claim against a municipal corporation (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 143). The court must consider all relevant circumstances.

Under the particular circumstances of this case, the Supreme Court, upon reargument, improvidently exercised its discretion in adhering to the original determination denying the petition for leave to serve a late notice of claim (see Matter of Vasquez v City of Newburgh, 35 AD3d 621, 623; Gibbs v City of New York, 22 AD3d 717, 718; Ayala v City of New York, 189 AD2d 632, 633).

In light of our determination, we need not reach the petitioners' remaining contentions.

SKELOS, J.P., FISHER, MILLER and CARNI, JJ., concur.

20090113

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