| Matter of Griffin v City of New York |
| 2010 NY Slip Op 00681 [69 AD3d 938] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Maurice Griffin, Appellant, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Mordecai Newman of counsel;Yael Wilkofsky on the brief), for respondents.
In a proceeding, inter alia, pursuant to General Municipal Law § 50-e (5) to deem anotice of claim timely served upon the City of New York, the petitioner appeals from an order ofthe Supreme Court, Kings County (Miller, J.), dated November 25, 2008, which denied thepetition.
Ordered that the order is affirmed, with costs.
The petitioner sought, inter alia, to deem a notice of claim he belatedly served upon the Cityof New York timely served upon the City. In determining whether to grant that branch of thepetition which was to deem the notice of claim timely served upon the City, the Supreme Courtwas required to consider, among other things, whether (1) there was a reasonable excuse for thedelay in serving the notice of claim, (2) the City acquired actual knowledge of the essential factsconstituting the petitioner's claims within 90 days of the accrual of those claims or a reasonabletime thereafter, and (3) the delay in serving the notice of claim would result in substantialprejudice to the City defending on the merits (see General Municipal Law § 50-e[5]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-153[2008]). Here, the petitioner failed to present a reasonable excuse for failing to timely serve anotice of claim (see Matter of Formisano v Eastchester Union Free School Dist., 59AD3d 543, 544 [2009]). In addition, the petitioner failed to demonstrate that the City had actualknowledge of the essential facts constituting his claims within 90 days of the accrual of thoseclaims or a reasonable time thereafter (see Shapiro v Town of Clarkstown, 238 AD2d498, 499 [1997]). Finally, the petitioner failed to establish that the delay in serving the notice ofclaim would not result in substantial prejudice to the City defending on the merits (see Matterof Wright v City of New York, 66 AD3d 1037, 1039 [2009]; Matter of Catuosco v Cityof New York, 62 AD3d 995, 997 [2009]; Matter of Deegan v City of New York, 227AD2d 620 [1996]). Under these circumstances, the Supreme Court properly denied that branchof the petition which was to deem the notice of claim timely served upon the City (seeNuamah v City of New York, 13 AD3d 502 [2004]).
The petitioner's remaining contentions are without merit. Covello, J.P., Angiolillo, Balkinand Sgroi, JJ., concur.