Upon the foregoing papers it is ordered that the petitioners' application for late notice relief pursuant to General Municipal Law §50-e (5) is determined as [*2]hereinafter set forth:

As gleaned from a review of the respective submissions, Domenico Caputi contends that he was caused to sustain personal injuries due to the negligence of the respondent in the ownership, operation and maintenance of a manhole/manhole cover situated within the roadway of Jericho Turnpike at or near its intersection with Denton Avenue in New Hyde Park, New York. The copy of the exhibited Police Report indicates that on December 28, 1997, Mr. Caputi's motor vehicle came into contact with an open manhole at the above-noted location. It appears that as a result thereof, Mr. Caputi's vehicle came into contact with a fixed stationary object along the subject roadway.

Upon retention of counsel in early January 1998, the respondent, among others, was afforded informal notice of the occurrence and the resultant injuries. A copy of the applicable Police Accident Report was also provided at that juncture. Shortly thereafter, a Notice of Claim was served, albeit upon an alternate public corporation.

Respondent's opposition is expressly predicated on three distinct bases. Initially, it is asserted that the instant application was brought as a motion and not as a special proceeding. Secondly, the respondent contends that the petitioner failed to provide a valid excuse for the delay. Lastly, it is argued that the delay in the service of the requisite Notice of Claim is prejudicial to the respondent's ability to defend itself on the merits.

Turning first to the procedural argument posited by the respondent, the Court notes that the failure to initiate a special proceeding, as is required in this context, is not always preclusive.

"'It is fundamental that the court, in determining the nature of an instrument looks to its substance, rather than to its label. To the extent that the "affirmation" does not bear the title of "petition," it does not violate any substantial right of the [respondent] and the defect may be disregarded by the court as a mere irregularity. (CPLR 2001)' (Matter of Board. of Educ. [Half Hollow Hills Teachers Assn.], 79 Misc 2d 223, 225)." (Matter of Billone v Town of Huntington, 188 AD2d 526, 527)

Inasmuch as counsel's supporting affirmation contains the elements of a petition; inasmuch as the proposed exhibited Notice of Claim is verified by a party with personal knowledge of its contents; inasmuch as the confluence thereof is more than sufficient to apprise the respondent of the relief sought and to mount a defense thereto, the Court, in an exercise of its discretionary authority, will ignore the defect in form and consider the application on its merits. (see, CPLR 103 [c]; [*3]CPLR 2001; CPLR 2005; Matter of Billone v Town of Huntington, supra)

The instant application is governed by General Municipal Law §50-e (5) which, in pertinent part, provides as follows: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim *** In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation *** acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one [90 days] or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. (emphasis supplied)

The instant application which, as noted above, contained the proposed verified Notice of Claim, was served less than ninety (90) days subsequent to the expiration of the statutory period.

The presence or absence of any of the enumerated statutory considerations is not necessarily dispositive, as the Court is charged with the responsibility to consider all the relevant facts and circumstances presented. (see, Rosenblatt v City of New York, 160 AD2d 927)

The Legislature, in amending §50-e (5) of the General Municipal Law, adopted a standard of reasonableness to be utilized by the Court in exercising its discretion to afford late notice relief.

"The words 'reasonable time' are not defined, the obvious statutory intent being to permit courts large discretion after consideration of 'all ... relevant facts and circumstances' to determine what is reasonable. Consistent with this purpose, courts have repeatedly sustained as having been brought within a reasonable time applications brought a longer period of time after the expiration of the prescribed 90-day period than the notice of claim here served [herein] . (See Beatty v County of Saratoga, 74 AD2d 662 [4 months]; Matter of Wemett v County of Onondaga, 64 AD2d 1025 [7 months]; Bureau v Newcomb Cent. School Dist., 74 AD2d 133 [9 months]; Palazzo v City of New York, 444 F Supp 1089 [12 months].)" [*4](Heiman v City of New York, 85 AD2d 25, 28-29 [1st Dept.])

The determination turns, in large measure, on the intent of the Legislature in amending the governing statute and upon the function to be served by the Notice of Claim.

"To address the problem of technical dismissals of potentially meritorious claims, the Legislature in 1976 'loosened' the 'tightly woven' provisions that govern applications for permission to serve late notice of claim, 'keeping in mind the functional purpose of the notice * * * and the need to balance the interests of the public and of the injured person.' (14th Ann Judicial Conference Report on the CPLR, 1976 McKinney's Session Laws of NY, at 2072, 2077-2078.) *** The Legislature also substantially amended section 50-e (5), replacing it with the current version, which generally provides courts with broader discretion to permit claimants to serve late notice of claim (see, Matter of Beary v City of Rye, 44 NY2d 398, 407-408)." ( Matter of Callahan v City of New York, 75 NY2d 899, 901)

"It has been said that 'The only legitimate purpose served by the notice' is prompt investigation and preservation of evidence of the facts and circumstances out of which claims arise (21st Annual Report of NY Judicial Conference, 1976, p 302; Adkins v City of New York, 43 NY2d 346, 350; Winbush v City of Mount Vernon, 306 NY 327, 333; cf. Salesian Soc. v Village of Ellenville, 41 NY2d 521, 524). The greater flexibility introduced by the amendments appears designed to encourage greater fairness in achieving that goal. Our original notice of claim statutes attempted to serve this purpose by imposing an unbending time bar on late claims (Matter of Martin v School Bd. of Union Free Dist., 301 NY 233, 236-237). Succeeding legislation gradually eased this strictness (L 1945, ch 694; L 1959, ch 814; L 1976, ch 745), but, as the nature of the exceptions listed in section 50-e until its most recent amendment attests, these were not functionally related to the achievement of its primary goal. Instead, they were directed only toward mitigating the hardship imposed on particular categories of claimants. In contrast, the 1976 amendments no longer confine the range of the discretion entrusted to courts to rigid classifications."(Matter of Beary v City of Rye, 44 NY2d 398, 412 [emphasis supplied])

"The purpose of the statutory notice of claim requirement (General Municipal Law, §50-e) is to afford the public corporation 'an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available' (Teresta v. City of New York, 304 NY 440, 443; see, also, O'Brien v. City of Syracuse, 54 [*5]NY2d 353, 358; Salesian Soc. v. Village of Ellenville, 41 NY2d 521, 524)." (Caselli v City of New York, 105 AD2d 251, 252)

Thus, it is apparent that the notice requirements were intended to shield public corporations against spurious claims, swollen over the course of time "[i]n disfigurement of the truth" (Thomann v City of Rochester, 256 NY 165, 172), but not to serve as a sword to cut off the rights of persons having legitimate claims to obtain due compensation therefore. (see, Hopkins v East Syracuse Fire District, 49 Misc 2d 197, 201; Harwood v City of Hornell, 41 Misc 2d 706, 710; Robinson v Board of Education of Galway Central School District No.1, 1 Misc 2d 634, 635)

Respondent's contention that it has been prejudiced by the delay is neither compelling nor persuasive. The respondent failed to specify the manner in which the preparation of a defense on the merits has been compromised or hindered and neglected to delineate the supportive measures it has been prevented from taking. (see, Loomis v Civetta Corinno Construction Corp., 54 NY2d 18; see also, Wetzel Services Corporation v Town of Amherst, 207 AD2d 965 [4th Dept.])

It is significant to note that the respondent failed to indicate the level and nature of the investigatory activity undertaken, if any, in response to the informal notice it received. In this regard the Court notes the absence of any indication that the police officer who prepared the Police Accident Report or the witness, whose name, address and phone number appear thereon, have been contacted by the respondent in an effort to check the petitioner's veracity.

Prejudice may not be inferred from a silent record (see, Wetzel Services Corporation v Town of Amherst, supra; Castro v New York City Housing Authority, 180 AD2d 415 [1st Dept.]; Tucker v Long Island Railroad Company, 128 AD2d 517; Evers v City of New York, 90 AD2d 786; Mayer v Dupont Associates, 80 AD2d 799 [1st Dept.]), nor may counsel's ipse dixit representation be afforded probative value where, as here, there is nothing suggestive of the requisite personal knowledge. (see, Zuckerman v City of New York, 49 NY2d 557)

"Among the factors to be considered is whether the delay in serving the formal notice substantially prejudiced the public corporation in maintaining a defense on the merits. Absent such a showing, an inexplicable delay, even based upon ignorance of the law, will be excused if it can be shown that the public corporation had actual notice of the incident (Matter of Gerzel v City of New York, 117 AD2d 549, 551)." (Staton v New York City Housing Authority, 166 AD2d 331 [1st Dept.])

While the delay in serving the required formal notice herein was not de [*6]minimis, the record supports the conclusions that the respondent acquired actual notice of the essential elements of the underlying claims within thirty (30) days of the accrual thereof through the receipt of counsel's correspondence and the applicable police blotter transmitted therewith, and that it either refused or neglected to respond thereto until after expiration of the ninety (90) day period.

Assuming arguendo that the delay in its service was not a product of excusable error concerning the identity of the public corporation against which the claim should have been asserted, the Court notes that it is the absence of a valid excuse, coupled with prejudice redounding to the detriment of the public corporation, that generally requires denial of late notice relief. (see, Gaye v City of New York, 144 AD2d 532) Mere delay, without attendant prejudice, does not preclude a grant of late notice relief, as no presumption arises despite an extensive delay.

"There is nothing in the statute (General Municipal Law, § 50-e, subd 5) which would indicate the existence of such a presumption. While a long delay can support a finding of prejudice (see Tanco v New York City Housing Auth., 84 AD2d 501), nonetheless, it does not mandate such a finding (see Monge v City of New York Dept. of Social Servs., 95 AD2d 848, 849)." (Bensen v Town of Islip, 99 AD2d 755, 756, app dsmd 62 NY2d 798)

The record neither suggests that the information currently available to the respondent is qualitatively different than it would have been had formal notice been served within the temporal parameters of the statute (see, generally, Matter of Parco v City of New York, 160 AD2d 581, 583 [1st Dept.]), nor that the respondent's capacity to defend itself on the merits has been significantly impaired.

Accordingly, the instant application is granted with costs imposed. Upon the service of a copy of this order with notice of its entry, the Notice of Claim in the form annexed to the supporting papers will be deemed to have been timely served, nunc pro tunc.

This concludes the special proceeding commenced under index number 15210/98 to obtain late notice relief. In the event that claimants intend to initiate a personal injury action against the respondent herein, same shall be initiated under a separate index number, unless previously commenced.

Dated: October 5, 1998______________

J.S.C.

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