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.
