Morgan v. City of Elmira , 496 N.Y.S.2d 578 ( 1985 )

Yesawich, Jr.,

J., dissents and votes to affirm in the following memorandum. Yesawich, Jr. (dissenting). I respectfully dissent.

Because the new standards governing permission for leave to file a late notice of claim have been purposely made far more elastic (Hamm v Memorial Hosp., 99 AD2d 638), and we repeatedly reaffirm that Special Term has broad discretion in this area (Matter of Edwards v Town of Delaware, 115 AD2d 205), I am unwilling to say granting petitioner’s application constituted an abuse of discretion. That respondent acquired knowledge of the essential facts underlying petitioner’s negligence claim within the 90-day time limit is apparent, for the acts complained of were purportedly carried out by municipal agents. And the fact that petitioner did not become aware of the seriousness of her injuries until some SVi months after the shoot-out surely is not a fatal impediment (id.), particularly since it does not appear respondents have been substantially prejudiced thereby in maintaining their defense. Also impacting favorably on the propriety of Special Term’s decision is that any delay associated with the filing of the proposed claim was due to no fault of petitioner, nor was it occasioned by any lack of good faith.

Accordingly, I would affirm.