| Matter of Fouto v City of Yonkers |
| 2011 NY Slip Op 02877 [83 AD3d 708] |
| April 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Lidia Fouto, Appellant, v City of Yonkers,Respondent. |
—[*1] Mark W. Blanchard, Corporation Counsel, Yonkers, N.Y. (Michael Levinson of counsel), forrespondent.
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, Westchester County(Adler, J.), entered April 27, 2010, which denied the petition.
Ordered that the order is affirmed, with costs.
In determining whether leave to serve a late notice of claim should be granted, a court shallconsider, as key factors, whether (1) the claimant has demonstrated a reasonable excuse forfailing to serve a timely notice of claim, (2) the municipality acquired actual knowledge of theessential facts constituting the claim within 90 days from its accrual or a reasonable timethereafter, (3) the claimant was an infant, and (4) the delay would substantially prejudice themunicipality in maintaining its defense on the merits (see General Municipal Law§ 50-e [5]; Matter of Vicari vGrand Ave. Middle School, 52 AD3d 838 [2008]; Matter of Groves v New York City Tr. Auth., 44 AD3d 856 [2007];Matter of March v Town ofWappinger, 29 AD3d 998 [2006]; Gibbs v City of New York, 22 AD3d 717 [2005]). Here, thepetitioner's conclusory assertions failed to establish a reasonable excuse for her failure to serve atimely notice of claim, and neither the police call report nor the accident reports filed by theskating rink manager were sufficient to charge the City of Yonkers with actual knowledge of theessential facts constituting the claim within 90 days from its accrual or a reasonable timethereafter. Moreover, the petitioner failed to demonstrate that the delay in moving for leave toserve a late notice of claim did not substantially prejudice the City's ability to maintain a defenseon the merits. Rivera, J.P., Florio, Dickerson, Hall and Roman, JJ., concur.