| Brandi v City of New York |
| 2011 NY Slip Op 09122 [90 AD3d 751] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Johanna Brandi, Appellant, v City of NewYork, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Mordecai Newman of counsel;Graham Morrison on the brief), 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(Velasquez, J.), dated December 6, 2010, which denied the petition.
Ordered that the order is affirmed, with costs.
"Among the factors to be considered by a court in determining whether leave to serve a latenotice of claim should be granted are whether the municipality acquired actual knowledge of theessential facts constituting the claim within 90 days after the claim arose or within a reasonabletime thereafter; whether the delay would substantially prejudice the municipality in maintainingits defense; and whether the claimant had a reasonable excuse for the failure to serve a timelynotice of claim" (Matter of Joy v Countyof Suffolk, 89 AD3d 1025, 1026 [2011]; see General Municipal Law §50-e [5]). While the presence or the absence of any one of the factors is not necessarilydeterminative (see Matter of Chambersv Nassau County Health Care Corp., 50 AD3d 1134 [2008]), whether the municipalityhad actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Gonzalez v City of NewYork, 60 AD3d 1058, 1059 [2009]). The municipality must have notice or knowledge ofthe specific claim and not merely some general knowledge that a wrong has been committed (see Matter of Devivo v Town ofCarmel, 68 AD3d 991, 992 [2009]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp.Ctr.], 50 AD3d 830, 832 [2008]).
Here, the petitioner failed to demonstrate that the City of New York had actual notice of theessential facts constituting her claim (see Indar v City of New York, 71 AD3d 635, 636 [2010]).Moreover, she failed to put forward a reasonable excuse for her failure to file a timely notice ofclaim (see Matter of Padgett v City ofNew York, 78 AD3d 949, 950 [2010]). Finally, the petitioner failed to meet her burdenof establishing that the delay would not substantially prejudice the City in maintaining its defenseon the merits (see Matter of Padgett v City of New York, 78 AD3d at 950; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 152 [2008]).[*2]
Accordingly, the petition was properly denied. Rivera,J.P., Florio, Eng, Hall and Cohen, JJ., concur.