| Matter of Khalid v City of New York |
| 2012 NY Slip Op 00374 [91 AD3d 779] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Rizwan Khalid, Respondent, v City ofNew York, Appellant. |
—[*1] Segan, Nemerov & Singer, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac and Michael H. Zhu], of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the City of New York appeals from an order of the Supreme Court, KingsCounty (Velasquez, J.), dated November 10, 2010, which granted the petition.
Ordered that the order is reversed, on the law, with costs, the petition is denied, and theproceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, a court must considervarious factors, including whether (1) the claimant has demonstrated a reasonable excuse forfailing to serve a timely notice of claim, (2) the claimant was an infant, or mentally or physicallyincapacitated, (3) the public corporation acquired actual knowledge of the facts constituting theclaim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay wouldsubstantially prejudice the public corporation in defending on the merits (see GeneralMunicipal Law § 50-e [5]; Matterof Keyes v City of New York, 89 AD3d 1086 [2011]; Matter of Nurse v City of New York,87 AD3d 543, 544 [2011]; Matterof Tonissen v Huntington U.F.S.D., 80 AD3d 704, 704-705 [2011]).
The petitioner did not demonstrate a reasonable excuse for failing to serve a timely notice ofclaim. While the petitioner may have been physically incapacitated during the first three monthsafter the accident, he failed to demonstrate a reasonable excuse for the additional five-monthdelay after counsel was retained before properly filing the present petition for leave to serve a latenotice of claim (see Matter of Hill vNew York City Tr. Auth., 68 AD3d 866, 867 [2009]; Matter of Smith v Baldwin Union FreeSchool Dist., 63 AD3d 1078, 1079 [2009]; Matter of Baglivi v Town ofSouthold, 301 AD2d 597, 598 [2003]).
Furthermore, the City of New York did not acquire actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose or a reasonable time thereafter. Thecurb defect indicated on a map filed with the New York City Department of Transportation bythe Big Apple Pothole and Sidewalk Protection Corporation six years before the accident did notsuffice [*2]to give the City actual knowledge of the essential factsconstituting the petitioner's claim (see Matter of Konstantinides v City of New York, 278AD2d 235, 236 [2000]; Matter of Rios v City of New York, 180 AD2d 801, 802 [1992]).Notably, the City did not have actual timely knowledge of the petitioner's accident, his injuries,or the facts underlying his theory of liability against the City (see Matter of Iacone v Town of Hempstead, 82 AD3d 888, 889[2011]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]; Matter ofNieves v Girimonte, 309 AD2d 753 [2003]). Finally, the petitioner failed to demonstrate thatthe City would not be prejudiced if this petition were granted and a notice of claim werepermitted to be served almost nine months after the accident, especially given the transitorynature of the defect in the curb and the admittedly changed condition of the accident site (see Matter of Valentine v City of NewYork, 72 AD3d 981, 982 [2010]; Matter of Felice v Eastport/South Manor Cent.School Dist., 50 AD3d at 153; Matter of Aguilar v Town of Islip, 294 AD2d 358,359 [2002]; cf. Matter of Ruffino v Cityof New York, 57 AD3d 550, 551 [2008]).
Accordingly, the petition for leave to serve a late notice of claim should have been denied.Skelos, J.P., Dickerson, Hall, Roman and Cohen, JJ., concur.