| Matter of Mitchell v City of New York |
| 2010 NY Slip Op 07347 [77 AD3d 754] |
| October 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Adhiambo A. Mitchell, Appellant, v City ofNew York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Mary AnnHolden, and Marta Ross of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Miller, J.),entered November 30, 2009, which denied the petition and dismissed the proceeding.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the petition for leave to serve alate notice of claim under the relevant facts and circumstances of this case. Initially, the petitioner failedto demonstrate a reasonable excuse for not serving a timely notice of claim. Furthermore, he failed toestablish that the respondent received actual timely notice of the essential facts constituting his claim thatthe accident was caused by a defective guardrail (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 147 [2008]; Matter of NationalGrange Mut. Ins. Co. v Town of Eastchester, 48 AD3d 467, 468 [2008]; Weber vCounty of Suffolk, 208 AD2d 527, 528 [1994]). The investigation performed by the New YorkCity Police Department (hereinafter the NYPD) revealed that the accident occurred when thepetitioner, who was operating his vehicle at a speed of about 100 miles per hour, lost control of thevehicle and broke through the guardrail along the Belt Parkway. The NYPD's investigation failed tosuggest any connection between the happening of the accident and any alleged negligence by therespondent in the maintenance of the guardrail (see Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2009]; Matter of Godwin v Town of Huntington, 56AD3d 671, 672 [2008]; Matter ofAcosta v City of New York, 39 AD3d 629, 630 [2007]; Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. ofBabylon, 41 AD3d 404, 406 [2007]).
Moreover, under the circumstances of this case, a late notice of claim would prejudice therespondent (see Williams v Nassau CountyMed. Ctr., 6 NY3d 531 [2006]). Dillon, J.P., Balkin, Chambers and Sgroi, JJ., concur.