| Matter of National Grange Mut. Ins. Co. v Town ofEastchester |
| 2008 NY Slip Op 01149 [48 AD3d 467] |
| February 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of National Grange Mutual Insurance Company,Respondent, v Town of Eastchester, Appellant. |
—[*1] Eric N. Wolpin, New York, N.Y. (Thomas G. Connolly of counsel), forrespondents.
In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law§ 50-e (5), the appeal is from an order of the Supreme Court, Westchester County (Loehr,J.), entered May 15, 2007, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the petition is denied, and the proceeding is dismissed.
Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort andcommenced against a municipality (see General Municipal Law § 50-e [1] [a];Davidson v Bronx Mun. Hosp., 64 NY2d 59, 61 [1984]; O'Brien v City of Syracuse,54 NY2d 353, 358 [1981]). In deciding whether to permit service of a late notice of claim,the court will consider whether the municipality acquired actual notice of the essential factsconstituting the claim within 90 days after the claim arose or a reasonable time thereafter,whether the petitioner has a reasonable excuse for the failure to serve a timely notice of claim,and whether the delay would substantially prejudice the municipality in its defense on the merits(see General Municipal Law § 50-e [5]; Matter of White v New York City Hous. Auth., 38 AD3d 675[2007]; Matter of James v City of N.Y.Dept. of Envtl. Protection, 37 AD3d 832 [2007]; Matter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d 920,921 [2007]).
The Supreme Court improvidently exercised its discretion in granting the petition for leave[*2]to serve a late notice of claim. The Town of Eastchester(hereinafter the Town) did not receive actual notice or acquire knowledge of the essential factsconstituting the claim asserted by the petitioner within 90 days after the accident or a reasonabletime thereafter (see Williams v NassauCounty Med. Ctr., 6 NY3d 531, 537 [2006]; Matter of James v City of N.Y. Dept. of Envtl. Protection, 37 AD3d832 [2007]; Matter of Padovano vMassapequa Union Free School Dist., 31 AD3d 563 [2006]). The fact that theEastchester Police Department had knowledge of this accident, which occurred in the Town ofBronxville (hereinafter Bronxville), is insufficient to impute knowledge of the accident to theTown (see Matter of Vitali v City of New York, 205 AD2d 636 [1994]; Matter ofRuss v New York City Hous. Auth., 198 AD2d 361, 362 [1993]; Matter of Perry v Cityof New York, 133 AD2d 692, 693 [1987]; Caselli v City of New York, 105 AD2d251, 255-256 [1984]). Furthermore, the police accident report and the Bronxville PoliceDepartment call report failed to provide actual knowledge of the facts constituting the petitioner'sclaim that its subrogor's vehicle was damaged as a result of the Town's negligence (seeWilliams v Nassau County Med. Ctr., 6 NY3d at 537; Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. ofBabylon, 41 AD3d 404 [2007]; Matter of James v City of N.Y. Dept. of Envtl.Protection, 37 AD3d at 833; Matter of Finneran v City of New York, 228 AD2d 596,597 [1996]). The petitioner's further assertion that the Town's employee must have reported theaccident to his superiors was completely unsubstantiated (see Washington v City of NewYork, 72 NY2d 881, 883 [1988]; State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 35 AD3d718 [2006]). In addition, the petitioner failed to provide any excuse for its lengthy delay inbringing the proceeding.
It is unnecessary to reach the issue of prejudice to the Town, since the petition should havebeen denied due to the lack of timely actual knowledge of the facts constituting the claim and thepetitioner's lack of a reasonable excuse for the delay in bringing the proceeding (see Hebbard v Carpenter, 37 AD3d538, 541 [2007]; Matter of Dell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759-760[2006]; Matter of Carpenter v City ofNew York, 30 AD3d 594, 596 [2006]). Rivera, J.P., Florio, Carni and Balkin, JJ.,concur.