concurs as to the dismissal of the appeal from the order dated November 18,1980, but otherwise dissents and votes to reverse the order dated January 26, 1981, insofar as appealed from, vacate the prior order and grant the petitioner’s application for leave to serve a late notice of claim, with the following memorandum: Subdivision 5 of section 50-e of the General Municipal Law allows a court to consider all of the relevant factors and exercise considerable discretion in determining whether to permit the late service of a notice of claim (Matter of Beary v City of Rye, 44 NY2d 398; Matter of Somma v City of New York, 81 AD2d 889). Moreover, the statute is said to be remedial in nature and is to be liberally construed (Robb v New York City Housing Auth., 71 AD2d 1000). Notwithstanding the lack of “actual notice” to the county, there are other factors which support the grant of permission to serve a late notice of claim in this case. Thus, the court is required by statute to consider not only the presence or absence of “actual knowledge” by the municipality, but whether “the claimant [has] *** 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 [has] * * * substantially prejudiced the public corporation in maintaining its defense” (General Municipal Law, § 50-e, subd 5). In my view, the confusion over which municipality was responsible for the road’s maintenance and the need to investigate Islip’s disclaimer of liability excused the instant delay (see, e.g., Nordman v East Greenbush Cent. School Dist., 75 AD2d 958; Robb v New York City Housing Auth., supra). In addition, the county has failed to demonstrate any real prejudice from the late service of the notice of claim, as an identical application on behalf of petitioner’s passengers was granted in their action, and the county has now embarked upon the defense of that action on the merits. The motion court was informed of these developments on the application for leave to reargue, but, upon granting reargument, chose to adhere to its original determination. Under all of these circumstances, but especially in view of the fact that the merits of the claim of inadequate maintenance will now be *958litigated against the county in the passengers’ action, it is my belief that the interests of justice will best be served by permitting the petitioner to have his day in court on this issue as well. Any other result appears indefensible, and would represent an unholy exaltation of form over substance. Accordingly, I would grant the petitioner’s motion.