| Singh v City of New York |
| 2011 NY Slip Op 07408 [88 AD3d 864] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Parmeshwar Singh et al., Appellants, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and FayeLubinof of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Kerrigan, J.), entered September 21, 2010, which deniedtheir motion pursuant to General Municipal Law § 50-e (5) for leave to serve a late noticeof claim and granted the defendant's cross motion to dismiss the complaint for failure to timelyserve a notice of claim.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion forleave to serve a late notice of claim upon the defendant, City of New York. The plaintiffs did notdemonstrate a reasonable excuse for their failure to serve a notice of claim within 90 days afterthe claim arose (see General Municipal Law § 50-e [5]; Matter of Welch v New York City Hous.Auth., 7 AD3d 805 [2004]). The injured plaintiff's belief that workers' compensationbenefits were his sole remedy for the injury, and that he was unaware of a possible claim againstthe City did not constitute a reasonable excuse for the delay (see Casias v City of New York, 39 AD3d 681, 683 [2007];Matter of Brito v City of New York, 237 AD2d 286, 287 [1997]; Matter of O'Dowd vCity of New York, 226 AD2d 642 [1996]; Matter of Buddenhagen v Town ofBrookhaven, 212 AD2d 605, 606 [1995]). Furthermore, the plaintiffs did not establish thatthe City "acquired actual knowledge of the essential facts constituting the claim" within 90 daysafter the claim arose or a reasonable time thereafter (General Municipal Law § 50-e [1],[5]; see Matter of Carpenter v City ofNew York, 30 AD3d 594, 595 [2006]). The filing of various injury and accident reportsand witness statements with the New York City Transit Authority, an entity separate from theCity, did not provide the City with actual knowledge of the essential facts underlying the legaltheories on which liability is now predicated against it, and failed to afford the City a sufficientopportunity to promptly investigate the claim (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 148 [2008]; Pappalardov City of New York, 2 AD3d 699 [2003]; Matter of Lyerly v City of New York,283 AD2d 647, 648 [2001]; Matter of Ealey v City of New York, 204 AD2d 720, 721[1994]). Finally, the plaintiffs failed to establish that the delay in serving the notice of claimwould not substantially prejudice the City in maintaining its defense on the merits (see Williams v Nassau County Med.Ctr., 6 NY3d 531, 539 [2006]; Matter of Bush v City of New York, 76 [*2]AD3d 628, 629 [2010]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d at 152-153).
Since the Supreme Court providently denied the plaintiffs' motion for leave to serve a latenotice of claim upon the City, and no notice of claim was timely served, the Supreme Courtproperly granted the City's cross motion to dismiss the complaint (see General MunicipalLaw § 50-i; Dorce v UnitedRentals N. Am., Inc., 78 AD3d 1110, 1111 [2010]; Laroc v City of New York, 46 AD3d 760, 761 [2007]). Mastro,J.P., Balkin, Chambers and Sgroi, JJ., concur.