Practice point: In exercising its discretion to grant leave to serve the late notice, a court must consider whether (1) the claimant has demonstrated a reasonable excuse for failing to serve timely; (2) the claimant was an infant, or mentally or physically incapacitated; (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, pursuant to General Municipal Law § 50-e[5].
Student note: The factor of the petitioner’s infancy, standing alone, does not compel the granting of a petition for leave to serve a late notice.
Case:
Matter of Magana v. Westchester County Health Care Corp., NY Slip Op 08155 (2d
Dept. 2011).
Here is the decision.
Tomorrow’s issue: Legal malpractice.
