| Matter of Portnov v City of Glen Cove |
| 2008 NY Slip Op 03650 [50 AD3d 1041] |
| April 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joseph Portnov, Respondent, v City ofGlen Cove, Appellant. |
—[*1] William Pager, Brooklyn, N.Y., for respondent.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim, the City of Glen Cove appeals from an order of the Supreme Court, NassauCounty (Davis, J.), dated June 15, 2007, which granted the petition and deemed the notice ofclaim timely served nunc pro tunc.
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.
The petitioner, while walking in the parking lot of the Glen Cove Yacht Club (hereinafter theYacht Club) on February 6, 2006, allegedly was injured when he tripped and fell on a dangerousand/or defective portion of the pavement. He commenced a timely action against the Yacht Clubin the Supreme Court, Queens County, but did not learn until August 23, 2006 that the City ofGlen Cove owned the parking area and was responsible for its maintenance. On September 8,2006 the petitioner served a late notice of claim upon the City and moved, within the context ofthe Queens County action, for leave to serve a late notice of claim. The Supreme Court, QueensCounty, denied the motion, holding that, pursuant to CPLR 504, an action against a city must becommenced in the county where the city is located. The Supreme Court, Queens County, directedthe petitioner to make the application for leave to serve a late notice of claim in the propercounty. In April 2007 the petitioner commenced this proceeding in the Supreme Court, NassauCounty, for leave to serve a late notice of claim. The Supreme Court granted the petition. Wereverse.[*2]
The Supreme Court improvidently exercised its discretionin granting the petition for leave to serve a late notice of claim. Contrary to the petitioner'sassertion, the City did not acquire actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or within a reasonable time thereafter by virtue of the GlenCove Police Department aided case report, since there was nothing in the report to connect theoccurrence with any negligence on the part of the City (see Matter of Felice v East Port/South Manor Cent. School Dist., 50AD3d 138, 148-150 [2008]; Matter of Yearusskaya v New York City Tr. Auth., 279AD2d 583 [2001]; Matter of Guiliano v Town of Oyster Bay, 244 AD2d 408, 409[1997]; Caselli v City of New York, 105 AD2d 251, 258 [1984]). Moreover, thepetitioner failed to demonstrate that he was incapacitated to such an extent that he could not havecomplied with the statutory requirement to serve a timely notice of claim (see Matter of Papayannakos v LevittownMem. Special Educ. Ctr., 38 AD3d 902 [2007]; cf. Matter of Olsen v County of Nassau, 14 AD3d 706 [2005]). Abone fracture is not an incapacitation which would prevent the service of a timely notice of claim(see Matter of Embery v City of New York, 250 AD2d 611 [1998]).
The petitioner's failure to ascertain the City's ownership and/or maintenance of the YachtClub parking lot also did not constitute a reasonable excuse, since he failed to demonstrate thateither he or his counsel made any effort to investigate or research the ownership and maintenanceissue (see Bridgeview at Babylon CoveHomeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d 404, 405-406 [2007];Jenkins v New York City Hous.Auth., 29 AD3d 319, 319-320 [2006]; Matter of Nieves v Girimonte, 309 AD2d753, 754 [2003]).
Moreover, the petitioner did not establish that the City would not be prejudiced by the delay(see Matter of Aguilar v Town of Islip, 294 AD2d 358, 359 [2002]; Matter ofYearusskaya v New York City Tr. Auth., 279 AD2d at 583).
The parties' remaining contentions either are without merit or have been rendered academicin light of our determination. Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur.