| Matter of Devivo v Town of Carmel |
| 2009 NY Slip Op 09467 [68 AD3d 991] |
| December 15, 2009 |
| Appellate Division, Second Department |
| In the Matter of Anilo Devivo, Respondent, v Town ofCarmel, Appellant. |
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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the Town of Carmel appeals from an order of the Supreme Court, PutnamCounty (O'Rourke, J.), dated May 26, 2009, which granted the petition.
Ordered that the order is reversed, on the law, with costs, and the petition is denied.
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 Matter of Wright v City of New York, 66AD3d 1037 [2009]; see also Matter of Groves v New York City Tr. Auth., 44 AD3d 856[2007]). While the presence or the absence of any one of the factors is not necessarilydeterminative (see Matter of Chambers v Nassau County Health Care Corp., 50 AD3d1134 [2008]; Jordan v City of New York, 41 AD3d 658, 659 [2007]), whether themunicipality had actual knowledge of the essential facts constituting the claim is of greatimportance (see Matter of Gonzalez v City of New York, 60 AD3d 1058, 1059 [2009];Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2008]).The municipality must have notice or knowledge of the specific claim, and not merely somegeneral knowledge that a wrong has been committed (see Arias v New York City Health &Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008]; Pappalardo v Cityof New York, 2 AD3d 699 [2003]).
The petitioner asserted that the appellant Town of Carmel obtained actual knowledge of theessential facts by virtue of a police accident report made by the responding police officer and anambulance call report. However, in order for a report to provide actual knowledge of theessential facts, one must be able to readily infer from that report that a potentially actionablewrong had been committed by the municipal corporation (see Matter of Boskin v New YorkCity Tr. Auth., 44 AD3d 851, 852 [2007]). Here, the subject reports did not provide theappellant with actual notice of the essential facts constituting [*2]the petitioner's claim. The reports merely described the response tothe scene, the treatment of the injuries at the scene, and the transport of the petitioner to thehospital, but did not describe the accident and made no connection between the petitioner'sinjuries and any alleged negligence of the appellant (see Matter of Gilliam v City of NewYork, 250 AD2d 680 [1998]).
Moreover, the petitioner failed to put forward a reasonable excuse for the delay in seeking toserve a notice of claim. Although one of the factors contained in General Municipal Law §50-e (5) is "whether the claimant in serving a notice of claim made an excusable errorconcerning the identity of the public corporation against which the claim should be asserted," thepetitioner's failure to ascertain the appellant's ownership of the subject property herein was dueto a lack of due diligence in investigating the matter (see Bridgeview at Babylon CoveHomeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d 404, 405-406 [2007];Matter of Nieves v Girimonte, 309 AD2d 753, 754 [2003]; see also Arias v NewYork City Hous. Auth., 40 AD3d 298, 299 [2007]; Jenkins v New York City Hous.Auth., 29 AD3d 319, 319-320 [2006]).
Finally, the petitioner failed to sustain his burden by rebutting the appellant's assertions thatthe delay 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., Covello, Angiolillo, Leventhal and Roman,JJ., concur.