Marsden v Town of Floyd

Supreme Court, Oneida County

Decided on July 2, 2026

Index No. EFCA2026-000954

Elizabeth Snyder Fortino, J.

Petitioner Randall J. Marsden, as proposed administrator of the Estate of his wife,^FN1 Jean Cary Marsden (the "decedent"), commenced this action by Petition and Order to Show Cause seeking leave to serve a late Notice of Claim under General Municipal Law § 50-e (5) or for the proposed Notice of Claim served on Respondents Town of Floyd and County of Oneida to be deemed timely served nunc pro tunc. For the reasons that follow, leave to serve a late notice of claim is granted.

On March 7, 2025, the decedent was operating a school bus for the Holland Patent school district when the bus was struck head on by another school bus from the same school district. The accident allegedly occurred when the other bus crossed over into the decedent's lane, causing the collision and the decedent's death. The roadway on which the accident occurred was allegedly owned, operated, inspected, designed, controlled, and maintained by Respondents Town of Floyd and the County of Oneida, and Petitioner alleges that a significant contributing factor to the collision was Respondents' negligence in their responsibilities, including failure in monitoring, inspecting, snow and ice remediation, and negligence in resurfacing the roadway without repainting the lines demarcating the lanes of travel.

Petitioner now moves to serve a late Notice of Claim. Respondent Town of Floyd opposes; Respondent County of Oneida does not.

As set forth in the General Municipal Law, a Notice of Claim is required before filing a lawsuit against a municipal or public entity for personal injury, property damage, or wrongful death caused by alleged negligence or misconduct of public employees or agencies (General Municipal Law §50-i). A proper and timely Notice of Claim must be served upon the government and at least 30 days must elapse before a lawsuit can be commenced (id.). Pursuant to General Municipal Law § 50-e (1)(a), a Notice of Claim must be served within 90 days after the claim arises, i.e., after the date of the accident or event that forms the basis for the claim. For wrongful death claims, the 90-day timeframe runs from the appointment of a representative of the decedent's estate (General Municipal Law § 50-e [1][a]). No representative was appointed at the time of the Petition and Order Show Cause. Accordingly, it appears as though Petitioner's time to serve a Notice of Claim for a wrongful death claim has not yet run. With respect to any other claims, however, Petitioner's time to serve a Notice of Claim has expired.

The Court, however, has broad discretion to permit late service of a Notice of Claim. A late Notice of Claim may not be served later than one year and 90 days from the date of the accident or event (General Municipal Law § 50-e [5]). In determining whether to grant the extension of time to serve a late Notice of Claim or to deem an untimely Notice of Claim timely nunc pro tunc, the Court shall consider a nonexhaustive list of factors, including "whether the municipal corporation had actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether the delay caused substantial prejudice to any [*2]defense to the claim[,] and whether a reasonable excuse exists for the delay" (Matter of Cook v Maine-Endwell Cent. Sch. Dist., 236 AD3d 1167, 1168 [3d Dept 2025]).

The party seeking leave must first establish actual knowledge "through the submission of nonspeculative evidence" (Matter of Jaime v City of New York, 41 NY3d 531, 540 [2024]). This factor is to be accorded "great weight" (Matter of Beary v City of Rye, 44 NY2d 398, 412 [1978]). Next, the party seeking leave must initially "present some evidence or plausible argument that supports a finding of no substantial prejudice" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]). If this is accomplished, the burden shifts to respondents to "respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed" (id. at 467). Last, the Court may consider whether Petitioner had a reasonable excuse for the delay, but even where proof of that factor fails, "such a defect will not be deemed fatal where it is established that the respondent[s] had actual knowledge of the essential facts underlying the claim and there has otherwise been no compelling demonstration of prejudice" (Matter of Cook, 236 AD3d at 1168).

First, Petitioner submitted the following evidence in support of his argument that Respondents had actual notice of the essential facts: (1) a Summons and Complaint, filed on November 12, 2025, against Town of Floyd and County of Oneida (as well as the Holland Patent school district) by a parent of one of the children involved in the March 7, 2025 bus accident, raising similar allegations as would potentially be raised in a lawsuit by Petitioner; and (2) the Notice of Claim related to that action (separately provided as an attachment to the Supplemental Affirmation, Exhibit G) with police report attached, which were timely served on Respondents on March 21, 2025.

Respondent Town argues that "knowledge of the wrong" is not sufficient to satisfy actual knowledge, "the statute exacts notice of the claim" (NYSCEF Doc No. 19 quoting Liberty Group Holdings, Inc. v City of New York, 5 AD3d 148, 149 [1st Dept 2004]). It states that "[i]n order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim" (NYSCEF Doc No. 19 quoting Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2d Dept 2008]).

Here, the information before Respondents provided them with actual knowledge of both the facts related to the claims, as well as the potential claims or legal theories that might be brought by Petitioner. Although police reports on their own are usually insufficient to provide actual knowledge of the essential facts of a claim insofar as they do not always allow a municipality to infer that a potentially actionable wrong has been committed by a public corporation (Matter of Antoinette C. v County of Erie, 202 AD3d 1464, 1468 [4th Dept 2022]), the police report here was attached to the Notice of Claim served by a parent of one of the children injured in the same accident. The combination of the Notice of Claim and police report put Respondents on notice of the underlying facts, and that other parties named in the police report could potentially raise similar claims to the parent in that Notice of Claim. Because that Notice of Claim was timely served, Respondents had "actual knowledge" sufficient to satisfy this first factor.

Second, as indicated above, the party seeking leave must initially "present some evidence [*3]or plausible argument that supports a finding of no substantial prejudice" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]). Petitioner states that the exhibits provided establish that there is no possibility of prejudice associated with the delay in the service of the Notice of Claim insofar as the facts were known to Respondents contemporaneously and they received Notices of Claims with allegations arising from the same collision within two weeks of the accident occurring. This met Petitioner's burden of presenting "some evidence" or a "plausible argument" supporting a finding of no substantial prejudice. Therefore, the burden shifted to Respondents to "respond with a particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed" (id. at 467).

Respondent Town fails to meet its burden. The Town conclusorily states that it has been deprived of an opportunity to investigate the circumstances of the claim and therefore will be deprived of the ability to present a proper defense. This is insufficient to establish substantial prejudice.

Third, the Court may consider whether Petitioner had a reasonable excuse for the delay, but even where proof of that factor fails, "such a defect will not be deemed fatal where it is established that the respondent[s] had actual knowledge of the essential facts underlying the claim and there has otherwise been no compelling demonstration of prejudice" (Matter of Cook, 236 AD3d at 1168).

Petitioner's provided reason for delay is that he had just lost his wife in a tragic manner and was not in a state of mind to pursue litigation. Although this is not a reasonable excuse for delay, as noted above, lack of reasonable excuse is not fatal where Respondents had actual knowledge of the essential facts underlying the claim and have not demonstrated prejudice.

Last, Respondent asks the Court to consider whether Petitioner's claim has merit. Generally, the merits of a claim are not examined on a motion for leave to serve a late notice of claim (Matter of Ramirez v City of New York, 148 AD3d 908, 909 [2d Dept 2017]), but "[l]eave [to serve a late Notice of Claim] is not appropriate for a patently meritless claim" (Matter of Catherine G. v County of Essex, 3 NY3d 175, 179 [2004]).

Respondent Town argues that Petitioner has "proffered no evidence other than conclusory statements or baseless assertions" to support his allegations of negligence and wrongful death. Initially, evidence in support is not necessary at this stage; it must only appear to the Court that the allegations are not frivolous.

Petitioner alleges that the manner in which Respondents maintained the roadway on which the accident occurred was negligent. "A municipality has a nondelegable duty to members of the traveling public to keep its roads in reasonably safe condition" (Banta v Erie County, 134 AD2d 839, 840 [4th Dept 1987]). Petitioner has not yet stated whether the municipalities had written notice of the complained of conditions, but he does allege that the hazardous condition of the roadway was created through the "affirmative negligence" of the municipalities. Petitioner will have to support his claims further in an action, but at this point it does not appear that the allegations raised are patently meritless and Respondent has not pointed to the existence of any complete defense that would render Petitioner's claims "patently meritless."

Thus, after careful consideration of the papers identified at the outset of this Decision and Order, it is hereby

ORDERED that the Order to Show Cause is GRANTED.

This constitutes the Decision and Order of the Court.

ENTER:

Dated: July 2, 2026

Utica, New York

Hon. Elizabeth Snyder Fortino, J.S.C.