Posted On: February 18, 2007

Court Denies Application to File Late Notice of Claim

The Appellate Division Second Department recently held that the failure to file a timely notice of claim, as required by the General Municipal Law, should not be excused in the case of Narcisse v. Village of Central Islip.

The Court noted that General Municipal Law section 50-e requires that within 90 days of the event giving rise to a tort claim a party making such a claim must file a notice of claim with the municipality. The purpose is to provide the municipality a timely opportunity to investigate the claim. However, if there is a failure to file such a notice the law allows a party to seek leave of the court to file a late notice. The party seeking leave of the court must address certain factors such as a reasonable excuse for failing to file, lack of prejudice to the municipality and most particularly whether the municipality had actual knowledge of the occurrence.

The Court denied this application finding that the municipality had no knowledge of the occurrence and the petitioner had failed to demonstrate there would be no prejudice to the municipality. In addition, the petitioner had not sought legal advice until the 90 day period had expired and the Court found that ignorance of the law is no excuse for failing to comply.

Posted On: February 4, 2007

Condemnation for Recreational Proposes Qualifies as a Public Use

The Appellate Division found that a condemnation proceeding under the Eminent Domain Law in order to enhance a golf course and for other recreational purposes was proper in the case Matter of Rocky Point Realty v Town of Brookhaven. The Court found that review of a condemnation proceeding is limited to four issues: “whether (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition was within the condemnor’s statutory jurisdiction or authority, (3) the condemnor’s determinations and findings were made in accordance with procedures set forth in EDPL article 2 and SEQRA, and (4) a public use, benefit or purpose will be served by the proposed acquisition…”.

The property owner’s contention that EDPL 202, which requires that the purpose of the hearing conducted by the Town be stated in the notice, also mandates a description of every aspect of the project and its implementation was rejected by the Court. It was held that the proposed condemnation would serve a legitimate public purpose by enhancing recreation in the Town and therefore met the test of being a “public use”.

Finally, the Court noted that the Town complied with SEQRA. It found that, as the EAF failed to identify any potential adverse impacts and the petitioner failed to identify any significant potential for environmental harm, the Town took the requisite hard look and properly issued a negative declaration.