| Matter of Wright v City of New York |
| 2012 NY Slip Op 06610 [99 AD3d 717] |
| October 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Sandra Wright et al., Appellants, v City ofNew York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella and LisaA. Giunta of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal from an order of the Supreme Court, Kings County(Velasquez, J.), dated September 14, 2011, which denied the petition and, in effect, dismissed theproceeding.
Ordered that the order is affirmed, with costs.
To commence a tort action against a municipality, a claimant must serve a notice of claimwithin 90 days after the claim arises (see General Municipal Law § 50-e [1] [a]).Pursuant to General Municipal Law § 50-e (5), the court may, in its discretion, extend thetime to serve a notice of claim (see Matter of Lodati v City of New York, 303 AD2d 406[2003]). In determining whether to grant the extension, the court must consider certain factors,including, inter alia, whether the claimant demonstrated a reasonable excuse for failing to serve atimely notice of claim, whether the municipality acquired actual knowledge of the factsconstituting the claim within 90 days of its accrual or a reasonable time thereafter, and whetherthe delay would substantially prejudice the municipality in defending on the merits (seeGeneral Municipal Law § 50-e [5]; Matter of Acosta v City of New York, 39 AD3d 629, 630 [2007];Matter of Henriques v City of NewYork, 22 AD3d 847, 848 [2005]; Matter of Hicks v City of New York, 8 AD3d 566, 566-567[2004]). While no one factor is determinative, whether the municipality received actualknowledge of the facts constituting the claim in a timely manner is a factor that should beaccorded great weight (see Matter ofBurgess v County of Suffolk, 56 AD3d 769, 771 [2008]; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 147 [2008]; Matter of Dell'Italia v Long Is. R.R.Corp., 31 AD3d 758, 759 [2006]; Matter of Alexander v Board of Educ. for Vil. of Mamaroneck, 18AD3d 654 [2005]).
Here, the Supreme Court providently exercised its discretion in denying the petition for leaveto serve a late notice of claim. The respondents did not have any knowledge of the claim until thepetitioners commenced this proceeding one year after the injured petitioner's accident.Furthermore, the injured petitioner failed to demonstrate that her injury incapacitated her to suchan [*2]extent that neither she nor her husband could comply withthe statutory requirement to serve a timely notice of claim (see Matter of Valentine v City of New York, 72 AD3d 981, 982[2010]; Matter of Portnov v City of GlenCove, 50 AD3d 1041, 1042-1043 [2008]; Matter of Embery v City of NewYork, 250 AD2d 611 [1998]), or that she was not aware of the alleged severity of her injury(see Matter of Werner v Nyack UnionFree School Dist., 76 AD3d 1026 [2010]; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d at 151). Moreover, there was no evidence in the record tosupport the injured petitioner's hearsay allegation that her husband was misinformed of theapplicable statutory period within which to serve a notice of claim by an unidentified attorney (see Matter of Keyes v City of NewYork, 89 AD3d 1086 [2011]). In any event, the petitioners' alleged ignorance of the lawis not a reasonable excuse for their failure to serve a timely notice of claim (see Matter of Taylor v County ofSuffolk, 90 AD3d 769, 770 [2011]; Meyer v County of Suffolk, 90 AD3d 720, 721 [2011]).
Finally, the petitioners failed to demonstrate that the one-year delay in seeking leave to servea late notice of claim would not prejudice the respondents, given the passage of time and thetransient nature of the metal plate over which the injured petitioner allegedly tripped (see Matter of Khalid v City of NewYork, 91 AD3d 779, 780 [2012]; Matter of Burgess v County of Suffolk, 56AD3d at 771; Matter of Papayannakos vLevittown Mem. Special Educ. Ctr., 38 AD3d 902, 903 [2007]; cf. Matter of Mounsey v City of NewYork, 68 AD3d 998, 999 [2009]; Matter of Ruffino v City of New York, 57 AD3d 550, 551 [2008]).
We have not considered the injured petitioner's medical records that were improperlysubmitted to the Supreme Court by the petitioners for the first time with their papers in reply(see Matter of Keyes v City of New York, 89 AD3d at 1087; Conte v Valley Stream Cent. High SchoolDist., 23 AD3d 328, 329 [2005]; Perre v Town of Poughkeepsie, 300 AD2d 379,380 [2002]). Eng, P.J., Skelos, Chambers and Sgroi, JJ., concur.