| Matter of Wright v City of New York |
| 2009 NY Slip Op 07856 [66 AD3d 1037] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Franklin R. Wright et al.,Respondents, v City of New York et al., Appellants, et al.,Respondent. |
—[*1] Russo, Scamardella & D'Amato, P.C., Staten Island, N.Y. (Linda Smyth Victorio ofcounsel), for petitioners-respondents.
In a proceeding pursuant to General Muncipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Richmond County (Maltese,J.), dated July 17, 2008, which granted the petition.
Ordered that the order is reversed, on the law, with costs, the petition is denied, and theproceeding is dismissed.
Among the factors to be considered by a court in determining whether leave to serve a latenotice of claim should be granted is whether the public corporation acquired actual knowledge ofthe essential facts constituting the claim within 90 days after the claim arose or within areasonable time thereafter, whether the petitioner had a reasonable excuse for the failure to servea timely notice of claim, and whether the delay would substantially prejudice the publiccorporation in maintaining its defense (see General Municipal Law § 50-e [5];Matter of Vicari v Grand Ave. Middle School, 52 AD3d 838 [2008]; Matter ofGroves v New York City Tr. Auth., 44 AD3d 856 [2007]). While the presence or theabsence of any one of the factors is not necessarily determinative (see Matter of Vicari vGrand Ave. Middle School, 52 AD3d at 838; Matter of Chambers v Nassau CountyHealth Care Corp., 50 AD3d 1134 [2008]), the issue of whether the municipality had actualknowledge of the essential facts constituting the claim is of great importance (see Matter ofGonzalez v City of New York, 60 AD3d 1058 [2009]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147 [2008]).
Generally, the phrase "facts constituting the claim" is understood to mean the facts whichwould demonstrate a connection between the happening of the accident and any negligence onthe part of the municipal corporation (see Saafir v Metro-North Commuter R.R. Co., 260AD2d 462, 462 [1999]). The municipal corporation must have notice or knowledge of thespecific claim and not merely some general knowledge that a wrong has been committed (seeArias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830,832 [2008]; Pappalardo v City of New York, 2 AD3d 699 [2003]).
The petitioners here asserted that the City of New York obtained actual knowledge of theessential facts by virtue of the police accident report made by the responding officer. However,in order for a report to provide actual knowledge of the essential facts, one must be able toreadily infer from that report that a potentially actionable wrong had been committed by thedefendants (see Matter of Boskin v New York City Tr. Auth., 44 AD3d 851 [2007]).Here, the police accident report did not provide the City with actual notice of the essential factsconstituting the petitioners' claim. The report merely described the circumstances surroundingthe accident, and made no connection between the injuries alleged by the petitioners and theallegedly negligent conduct of the City (see Matter of Gilliam v City of New York, 250AD2d 680 [1998]).
Moreover, the petitioners failed to submit any admissible medical evidence to support theirclaim that the injured petitioner was incapacitated to such an extent that he could not havecomplied with the statutory requirement to serve a timely notice of claim (see Matter ofPortnov v City of Glen Cove, 50 AD3d 1041 [2008]; Matter of Papayannakos vLevittown Mem. Special Educ. Ctr., 38 AD3d 902 [2007]).
Finally, the petitioners failed to sustain their burden by rebutting the City's assertions that thedelay substantially prejudiced its ability to investigate and defend against the claim (seeMatter of Landa v City of New York, 252 AD2d 525 [1998]; Matter of Deegan v City ofNew York, 227 AD2d 620 [1996]). Rivera, J.P., Miller, Balkin, Leventhal and Hall, JJ.,concur.