| Matter of Bell v City of New York |
| 2012 NY Slip Op 08118 [100 AD3d 990] |
| November 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Joseph Bell, Respondent, v City of NewYork, Appellant. |
—[*1] Costello & Costello, P.C. (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 City of New York appeals from an order of the Supreme Court, KingsCounty (Ash, J.), dated August 12, 2011, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is denied.
The Supreme Court improvidently exercised its discretion in granting the petition for leave toserve a late notice of claim. The petitioner failed to demonstrate a reasonable excuse for thefailure to serve a timely notice of claim and for the delay in filing the petition (see Matter ofDube v City of New York, 158 AD2d 457 [1990]). The petitioner's ignorance of the law andlate retention of counsel did not constitute reasonable excuses (see Matter of Taylor v County ofSuffolk, 90 AD3d 769, 770 [2011]; Matter of Wright v City of New York, 66 AD3d 1037, 1038[2009]; Matter of Ealey v City of New York, 204 AD2d 720 [1994]). Furthermore, thepetitioner failed to submit any medical evidence to support his assertion that he was incapacitatedto such an extent that he could not have complied with the statutory requirement to serve a timelynotice of claim (see Matter of Taylor v County of Suffolk, 90 AD3d at 770; Matter ofWright v City of New York, 66 AD3d at 1038; Matter of Portnov v City of Glen Cove, 50 AD3d 1041 [2008]; Matter of Papayannakos v Levittown Mem.Special Educ. Ctr., 38 AD3d 902 [2007]).
Contrary to the petitioner's contention, the City did not acquire actual knowledge of theessential facts constituting the claim within 90 days after the accident or a reasonable timethereafter. The defect indicated on a map filed with the New York City Department ofTransportation by the Big Apple Pothole and Sidewalk Protection Corporation more than nineyears before the accident did not suffice to give the City actual knowledge of the essential factsunderlying the petitioner's present claim or his theory of liability against the City (see Matter of Khalid v City of NewYork, 91 AD3d 779, 780 [2012]; Matter of Konstantinides v City of New York,278 AD2d 235 [2000]; Matter of Rios v City of New York, 180 AD2d 801, 802 [1992]).In addition, the petitioner failed to demonstrate that his delay of more than four months incommencing this proceeding would not [*2]substantiallyprejudice the City in maintaining its defense, given the transitory nature of the sidewalk defect(see Matter of Valentine v City of NewYork, 72 AD3d 981, 982 [2010]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 153 [2008]; Matter of Papayannakos v Levittown Mem. Special Educ. Ctr., 38AD3d at 903; Matter of Gofman v City of New York, 268 AD2d 588 [2000]).
The petitioner improperly asserted an additional excuse for the delay for the first time in areply affidavit and, therefore, that excuse could not properly be considered (see Matter of Wright v City of NewYork, 99 AD3d 717 [2012]; Matter of Cali v City of Poughkeepsie, 84 AD3d 1229 [2011]; Fenner v County of Nassau, 80 AD3d555, 556 [2011]). Mastro, J.P., Skelos, Chambers and Sgroi, JJ., concur.