| Matter of Guminiak v City of Mount Vernon Indus. Dev.Agency |
| 2009 NY Slip Op 09658 [68 AD3d 1111] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Mariusz Guminiak, Respondent, v City ofMount Vernon Industrial Development Agency, Appellant. |
—[*1] The Perecman Firm, PLLC, New York, N.Y. (David Perecman and Rudolf B. Radna ofcounsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Westchester County (O.Bellantoni, J.), entered July 15, 2009, which granted the petition.
Ordered that the order is reversed, on the law and the facts, with costs, and the petition isdenied.
The Supreme Court erred in granting the petitioner leave to serve a late notice of claim. Thepetitioner's delay in serving the notice of claim was the result of law office failure, which is notan acceptable excuse for the failure to timely comply with the provisions of General MunicipalLaw § 50-e (see Bridgeview at Babylon Cove Homeowners Assn., Inc. v IncorporatedVil. of Babylon, 41 AD3d 404, 405-406 [2007]; Arias v New York City Hous. Auth.,40 AD3d 298, 299 [2007]; Matter of Roland v Nassau County Dept. of Social Servs.,35 AD3d 477, 479 [2006]; Seif v City of New York, 218 AD2d 595, 596 [1995]).Moreover, the appellant did not have actual knowledge of the essential facts underlying theclaim until the petitioner served the petition (see Matter of James v City of N.Y. Dept. ofEnvtl. Protection, 37 AD3d 832, 833 [2007]). The reports of the police and emergencyservices providers relied upon here by the petitioner are insufficient to impute knowledge of theaccident to the appellant (see Matter of National Grange Mut. Ins. Co. v Town ofEastchester, 48 AD3d 467, 468 [2008]; Matter of Dancy v Poughkeepsie Hous. Auth.,220 AD2d 413, 414 [1995]; Caselli v City of New York, 105 AD2d 251, 255-256[1984]). Finally, the petitioner failed to rebut the appellant's assertion that the delay substantiallyprejudiced its ability to investigate and defend the claim (see Matter of Landa v City of NewYork, 252 AD2d 525, 526 [1998]). Fisher, J.P., Santucci, Dickerson, Chambers and Lott, JJ.,concur.