| Matter of Csaszar v County of Dutchess |
| 2012 NY Slip Op 03639 [95 AD3d 1009] |
| May 8, 2012 |
| Appellate Division, Second Department |
| In the Matter of Frederick J. Csaszar, Appellant, v Countyof Dutchess, Respondent. (Appeal No. 1.) Frederick J. Csaszar, Appellant, v County of Dutchess,Respondent, et al., Defendant. (Appeal No. 2.) |
—[*1] Kelly & Meenagh, LLP, Poughkeepsie, N.Y. (John P. Meenagh, Jr., of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim and a related action to recover damages for personal injuries, Frederick J. Csaszarappeals from (1) an order of the Supreme Court, Dutchess County (Wood, J.), dated September2, 2010, which denied the petition, and (2) an order of the same court dated September 8, 2011,which denied his motion pursuant to CPLR 3215 for leave to enter a judgment against thedefendant County of Dutchess upon its failure to appear or answer the complaint.
Ordered that the orders are affirmed, with costs.
Service of a notice of claim within 90 days after accrual of the claim is a condition precedentto commencing an action against the defendant County of Dutchess (see County Law§ 52 [1]; General Municipal Law § 50-e [1] [a]; § 50-i [1] [a]; Mills vCounty of Monroe, 59 NY2d 307 [1983], cert denied 464 US 1018 [1983];O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Grasso v Schenectady County Pub.Lib., 30 AD3d 814, 816-817 [2006]). In determining whether leave to serve a late noticeof claim should be granted, a court should consider, as key factors, whether the petitioner hasdemonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the publiccorporation acquired actual knowledge of the essential facts constituting the claim within 90 daysfrom its accrual or a reasonable time thereafter, and whether the delay would substantiallyprejudice the public corporation in maintaining its defense on the merits (see Matter of Whittaker v New York CityBd. of Educ., 71 AD3d 776, 777 [2010]; Matter of Mounsey v City of New York, 68 AD3d 998, 999 [2009];Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d 734 [2008]). Here, the appellant failed todemonstrate a reasonable excuse for his one-year delay after the expiration of the 90-daystatutory period in commencing this proceeding. The appellant's incarceration and his difficultyin obtaining counsel are insufficient excuses for the delay (see De Jesus v County ofAlbany, 267 AD2d 649, 651 [1999]; Matter of Duarte v Suffolk County, 230 AD2d851, 852 [1996]). Furthermore, the evidence submitted by [*2]theappellant along with his petition failed to establish that the County had actual knowledge of theessential facts constituting the claim within 90 days following accrual or a reasonable timethereafter (see Williams v NassauCounty Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Doersam v County of Suffolk, 89 AD3d 1021 [2011]; Matter of Michael v Nassau County, 81AD3d 732 [2011]; Matter of Bush vCity of New York, 76 AD3d 628, 629 [2010]). The appellant also failed to establish thatthe delay in serving a notice of claim would not substantially prejudice the County (seeWilliams v Nassau County Med. Ctr., 6 NY3d at 539; Matter of Bush v City of NewYork, 76 AD3d at 629; Matter ofFelice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152-153 [2008]).Accordingly, the petition for leave to serve a late notice of claim upon the County was properlydenied.
The Supreme Court also properly denied the appellant's motion pursuant to CPLR 3215 (f)for leave to enter a judgment against the County upon its default in appearing or answering thecomplaint in the personal injury action, since the appellant does not have a viable cause of actionagainst the County (see CPLR 3215 [f]; Woodson v Mendon Leasing Corp., 100NY2d 62, 71 [2003]; O'Brien v City of Syracuse, 54 NY2d at 358; see also Campbell v City of New York,4 NY3d 200, 202 [2005]). Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.