GUILDERLAND —  A pair of local residents are seeking permission from an Albany County court to serve the town of Guilderland with a late notice of claim for damages they say are due to the town’s mismanagement of its water systems.
The May 17 petition filed by Cuyler Court residents William and Colleen Anders claims that, in July 2023, the town’s use of heavy equipment to access “stormwater or water management facilities” caused damage to their driveway and yard, which when combined with Guilderland’s “negligence and failure to maintain certain components” of those facilities, led to “significant flooding” of the Anders’ basement six months later. 

The Anders are requesting permission to file the late notice of claim rather than just suing the town for damages because of a 2022 law adopted by Guilderland and patterned on state law that requires the notice to be filed within 90 days of the incident. 

In letters to the town, the Anders explained that the town’s highway department used their driveway to access and clean out a storm drain catchment, a request that was not made by the Anders but rather by their “neighbors that were experiencing yard flooding due to the excessive rain,” and that their own basement was flooded twice in December 2023 “due to significant pooling of water caused by the failure of the” town’s highway department to repair the culvert “to properly disperse runoff.”

The flooding, the Anders assert in court papers, “has caused or will cause structural damage to [their] home, and may also present as an imminent danger to the health, safety and welfare of [their] and their family, guests, and invitees on their property.”

But the Anders argue in court papers that, although they didn’t file the notice within the requisite 90 days, they “provided the Town with actual knowledge of each of the separate incidents and the essential facts which constitute the basis for the claims.”

The petitioners claim that, in the week following the July 2023 driveway-damage incident, they “sent a letter to then Highway Superintendent, Gregory J. Weir, notifying him of the damage to the driveway believed to have been caused by the Town's truck(s) and/or heavy equipment,” which was followed by a promise of repair that has yet to take place. 

Then, following the two December 2023 basement floods that occurred within a week of each other, the Anders “sent a letter to Town Supervisor Peter Barber via certified mail on January 11, 2024, providing the Town notice of these incidents,” which was followed by “a conversation with the Town’s attorney, James Melita, about the claim.”

Neither Melita nor Barber responded to a request for comment; however, the town’s standard line for such requests is that it doesn’t comment on pending litigation. 

After this story went to print, The Enterprise received a response from Melita stating “there is no current lawsuit pending against the Town regarding this matter.”

Melita went on to say by email, “The Town received a Petition to file a late notice of claim. The Town is unable to comment until this Petition is resolved.”

The filing of a notice of petition for leave to serve a late notice of claim is itself not a lawsuit, but rather a preliminary procedural step that seeks the court's permission to file the claim after the statutory deadline, which is a prerequisite to initiating the lawsuit against a public corporation in New York State. 

And when determining whether or not to grant permission to file a late claim, courts in New York state tend to give one factor more weight than any other: Did the local municipality or public corporation have actual knowledge of the essential facts of the claim within 90 days of it first arising.