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Rodman Successfully Argues to Dismiss Claim against Town of Amherst

In the matter of Kemper Services Group a/s/o Carl Galante v. Town of Amherst, the petitioner was seeking a petition to file a late notice of claim against our client, Town of Amherst.

This claim was brought over a year after the date of the accident, and well over the 90 day time limit an individual has to notice a claim against a municipality. 

Petitioner argued there was no prejudice because the Town of Amherst had constructive and actual notice of the accident.  Petitioner did not provide any excuse to the untimely filing.

On behalf of the Town of Amherst, we opposed the petition insisting there was prejudice in allowing an untimely notice of claim to be filed, as it was unable to exercise its right to conduct a discovery hearing pursuant to Gen. Mun. Law 50-h.  Further, we used the decision in Tate v. State Univ. Const. Fund, 2017 NY Slip Op 05009 (4th Dep’t June 16, 2017) to successfully argue against petitioner’s petition.  In Tate, the Fourth Department found the plaintiff failed to demonstrate a reasonable excuse for his failure to serve the notice of claim within 90 days of the claim's accrual or within a reasonable time thereafter.

Here, the Court also found that without any reasonable excuse for the untimely filing and without the ability to engage in proper pre-discovery initiatives, there would be prejudice against the Town of Amherst, and dismissed and denied the petition to file a late notice of claim.

The opposition papers were authored and argued by Sarah N. Rodman.

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