| Matter of Moore v New York City Hous. Auth. |
| 2011 NY Slip Op 08756 [89 AD3d 1088] |
| November 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Linda Moore, Respondent, v New York CityHousing Authority, Appellant. |
—[*1] Bosco Bisignano & Mascolo, LLP (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the New York City Housing Authority appeals from an order of the Supreme Court,Richmond County (Minardo, J.), dated January 27, 2011, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, andthe petition is denied.
The Supreme Court improvidently exercised its discretion in granting the petitioner leave to serve alate notice of claim on the New York City Housing Authority (hereinafter the Housing Authority).Although one of the factors a court must consider in determining an application for leave to serve a latenotice of claim is whether the claimant "made an excusable error concerning the identity of the publiccorporation against which the claim should be asserted" (General Municipal Law § 50-e [5]),here, the petitioner's failure to ascertain that the Housing Authority owned the premises abutting theaccident site was due to her failure to exercise due diligence in investigating the matter. Accordingly, thepetitioner's failure to serve a timely notice of claim on the proper public corporation was not anexcusable error (see Matter of Devivo vTown of Carmel, 68 AD3d 991, 992 [2009]; Matter of Portnov v City of Glen Cove, 50 AD3d 1041, 1043 [2008];Bridgeview at Babylon Cove HomeownersAssn., Inc. v Incorporated Vil. of Babylon, 41 AD3d 404, 405-406 [2007]; Jenkins v New York City Hous. Auth., 29AD3d 319, 320 [2006]; see also Lugo v New York City Hous. Auth., 282 AD2d 229[2001]).
Further, the Housing Authority did not acquire "actual knowledge of the essential facts constitutingthe claim" within 90 days after the claim arose or a reasonable time thereafter (General Municipal Law§ 50-e [5]). Knowledge of the accident cannot be imputed to the Housing Authority by virtue ofan ambulance call report generated by the City of New York, which is a separate entity (see Singh v City of New York, 88 AD3d864 [2011]; Matter of Guminiak v Cityof Mount Vernon Indus. Dev. Agency, 68 AD3d 1111, 1112 [2009]; Matter of National Grange Mut. Ins. Co. v Townof Eastchester, 48 AD3d 467, 468 [2008]). In any event, the ambulance call report wasinsufficient to [*2]provide actual knowledge of the essential factsunderlying the claim because it did not connect the petitioner's injuries to any alleged negligence on thepart of the Housing Authority (see Matter ofSchoen v City of New York, 86 AD3d 575 [2011]; Matter of Werner v Nyack Union Free School Dist., 76 AD3d 1026,1027 [2010]; Matter of Portnov v City of Glen Cove, 50 AD3d at 1042; Matter of Carpenter v City of New York,30 AD3d 594, 595 [2006]).
Finally, the petitioner failed to establish that the Housing Authority would not be substantiallyprejudiced in its defense on the merits should leave be granted (see Singh v City of New York, 88 AD3d 864 [2011]; Matter ofWerner v Nyack Union Free School Dist., 76 AD3d at 1027; Matter of Portnov v City ofGlen Cove, 50 AD3d at 1043). Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.