| Matter of Gobardhan v City of New York |
| 2009 NY Slip Op 05961 [64 AD3d 705] |
| July 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Kamaldai Gobardhan et al.,Appellants, v City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andDeborah A. Brenner of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal from an order of the Supreme Court, Queens County(Flug, J.), dated March 6, 2008, which denied the petition.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the petition for leave toserve a late notice of claim under the relevant facts and circumstances of this case (seeGeneral Municipal Law § 50-e [5]). The City of New York did not acquire actualknowledge of the essential facts constituting the claim within 90 days after the claim arose or areasonable time thereafter (see General Municipal Law § 50-e [1], [5]). Contraryto the petitioners' contention, the mere filing of a police accident report with the New York CityDepartment of Transportation did not constitute notice of the claim to the City (see Ribeiro vTown of N. Hempstead, 200 AD2d 730, 731 [1994]; Matter of Dube v City of NewYork, 158 AD2d 457, 458 [1990]; Matter of Perry v City of New York, 133 AD2d692 [1987]; Caselli v City of New York, 105 AD2d 251, 256 [1984]). In addition, thepetitioners failed to show that the delay in commencing this proceeding for more than 10 monthsafter the accident will not substantially prejudice the City in maintaining its defense on themerits (see Matter of Landa v City of New York, 252 AD2d 525, 526 [1998]; Ribeirov Town of N. Hempstead, 200 AD2d at 731; Matter of Perry v City of New York,133 AD2d at 692).
Moreover, the only excuse proffered by the petitioners for attempting to serve anunauthorized late notice of claim five months after the expiration of the 90-day statutory periodwas law office failure, which is not an acceptable excuse for the failure to timely comply withthe provisions of General Municipal Law § 50-e (see Matter of Roland v Nassau County Dept. of Social Servs., 35 AD3d477, 478 [2006]; Matter of Belenkyv Nassau Community Coll., 4 AD3d 422, 423 [2004]; Matter of Valestil v City ofNew York, 295 AD2d 619 [2002]). Furthermore, the petitioners failed to explain theadditional lapse of 2½ months between their attempt to serve the late notice of claimwithout the required court authorization and the commencement of the instant proceeding forleave to serve a [*2]late notice of claim (see Matter ofCamilleri v County of Suffolk, 190 AD2d 669 [1993]; Kravitz v County of Rockland,112 AD2d 352, 353 [1985], affd 67 NY2d 685 [1986]). Spolzino, J.P., Santucci,Angiolillo, Leventhal and Lott, JJ., concur.