| Matter of Catuosco v City of New York |
| 2009 NY Slip Op 04233 [62 AD3d 995] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of John A. Catuosco, Appellant, v City ofNew York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andCheryl Payer of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Queens County(Flug, J.), dated May 5, 2008, which denied the petition.
Ordered that the order is affirmed, with costs.
In determining whether to grant an application for leave to serve a late notice of claim, thekey factors which the court must consider are whether the movant demonstrated a reasonableexcuse for the failure to serve a timely notice of claim, whether the municipality acquired actualnotice of the essential facts of the claim within 90 days after the claim arose or a reasonable timethereafter, and whether the delay would substantially prejudice the municipality in its defense(see General Municipal Law § 50-e [5]; Matter of Kumar v City of New York, 52 AD3d 517 [2008]).
Contrary to the petitioner's contention, the original line-of-duty injury report, aided report,and witness statement prepared immediately after his accident, were insufficient to provide theCity of New York with actual notice of the essential facts underlying his claim (see Matter of Formisano v EastchesterUnion Free School Dist., 59 AD3d 543 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 149-150 [2008]; Matter ofGrande v City of New York, 48 AD3d 565, 566 [2008]; Matter of Gilliam v City ofNew York, 250 AD2d 680, 681 [1998]; Matter of DiBella v City of New York, 234AD2d 366, 367 [1996]). These reports merely indicated that the petitioner was injured when heattempted grab a handrail to prevent himself from falling down the stairs, and made no referenceto the alleged presence of sand on the stairs tracked in from the outdoors, or poor lightingconditions. What satisfies the statute is knowledge of the facts that underlie the legal theories onwhich liability is predicated, not simply knowledge of the accident itself (see Matter ofGrande v City of New York, 48 AD3d at 566; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 155 [2008]). Furthermore, although the amended line-of-duty report and witnessstatement did note that the petitioner slipped on a sandy surface and that the stairwell was poorlylit, these amendments were not filed until more than nine months after the accident. Thus, theCity [*2]of New York was not apprised of these facts within 90days after the accident or within a reasonable time thereafter.
The petitioner also failed to offer a reasonable excuse for his failure to serve a timely noticeof claim. The petitioner's explanation that he was unaware of the notice of claim requirementdoes not constitute a valid excuse (seeAstree v New York City Tr. Auth., 31 AD3d 589, 590 [2006]; Matter of Pico v City of New York, 8AD3d 287, 288 [2004]; Matter ofTermini v Valley Stream Union Free School Dist. No. 13, 2 AD3d 866, 867 [2003];Matter of Mallory v City of New York, 135 AD2d 636, 637 [1987]). In addition, thepetitioner failed to rebut the City's assertion that the delay prejudiced its ability to investigateand defend against the claim (seeMatter of Pico v City of New York, 8 AD3d 287, 288 [2004]; Matter of Termini v Valley Stream UnionFree School Dist. No. 13, 2 AD3d 866, 867 [2003]; Matter of DiBella v City of NewYork, 234 AD2d 366, 367 [1996]). Under these circumstances, the Supreme Courtprovidently exercised its discretion in denying the petitioner leave to serve a late notice of claim.Rivera, J.P., Dillon, Covello and Eng, JJ., concur.