| Matter of Grande v City of New York |
| 2008 NY Slip Op 01344 [48 AD3d 565] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Richard Grande et al., Respondents, v Cityof New York, Appellant. |
—[*1] Kelner and Kelner, New York, N.Y. (Todd J. Strier of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Richmond County (Aliotta,J.), dated January 24, 2007, which granted the petition.
Ordered that the order is reversed, on the law, with costs, the petition is denied, and theproceeding is dismissed.
The Supreme Court abused its discretion in granting the petition for leave to serve a latenotice of claim. The petitioners did not establish that the respondent had actual notice of theclaim. Although a line of duty injury report was prepared by the Department of Sanitationimmediately after the accident, it merely indicated that the petitioner was injured when he slippedfrom a salt spreader's ladder, which was not sufficient to give the appellant "actual knowledge ofthe essential facts constituting the claim" (General Municipal Law § 50-e [5]). Whatsatisfies the statute is knowledge of the facts that underlie the legal theory or theories on whichliability is predicated (see Matter of Felice v Eastport/South Manor Cent. School Dist.,50 AD3d 138 [2008]; Matter of Carpenter v City of NewYork, 30 AD3d 594, 595 [2006]; Matter of DiBella v City of New York, 234AD2d 366, 367 [1996]). Additionally, the petitioners did not demonstrate a valid excuse for theirfailure to timely serve a notice of claim (see Casias v City of New York, 39 AD3d 681, 683 [2007];Matter of O'Dowd v City of New York, 226 AD2d 642 [1996]). Finally, although weneed not reach the issue of prejudice based on the foregoing, we note that [*2]petitioners failed to demonstrate that the appellant was notprejudiced in its ability to investigate the accident and prepare a defense as a result of the delay(see Matter of Bruzzese v City of NewYork, 34 AD3d 577, 578 [2006]). Rivera, J.P., Lifson, Santucci and Covello, JJ.,concur.