| Matter of Minkowicz v City of New York |
| 2012 NY Slip Op 08128 [100 AD3d 1000] |
| November 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Chana Minkowicz, Respondent, v City ofNew York, Appellant. |
—[*1] The Berkman Law Office, LLC, Brooklyn, N.Y. (Aaron Solomon 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 (Velasquez, J.), dated March 18, 2011, which granted the petition.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, thepetition is denied, and the proceeding is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petition for leave toserve a late notice of claim. The petitioner did not demonstrate a reasonable excuse for the failureto serve a timely notice of claim and for the approximately one-year delay in filing the petition.The petitioner's ignorance of the requirement to serve the notice of claim within 90 days after theclaim arose did not constitute a reasonable excuse (see Meyer v County of Suffolk, 90 AD3d 720, 721 [2011]; Matter of Bush v City of New York, 76AD3d 628 [2010]; Matter of Dancy v Poughkeepsie Hous. Auth., 220 AD2d 413[1995]). Furthermore, the petitioner's assertions that she did not immediately appreciate thenature and severity of her injury and that she was caring for her seriously ill infant son wereunavailing without supporting medical evidence (see Matter of Werner v Nyack Union Free School Dist., 76 AD3d1026 [2010]; Matter of Wright vCity of New York, 66 AD3d 1037, 1038 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 151 [2008]; Matter of Ridley v New York City Tr. Auth., 38 AD2d 973[1972]).
In addition, the City did not acquire actual knowledge of the essential facts constituting theclaim within the 90-day statutory period or within a reasonable time thereafter (seeGeneral Municipal Law § 50-e [5]; Matter of Wright v City of New York, 99 AD3d 717 [2012];Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 147; Casias v City of New York, 39 AD3d681, 682 [2007]; cf. Matter of Battle v City of New York, 261 AD2d 614, 615[1999]). Moreover, the petitioner failed to establish that the delay in seeking leave to serve a latenotice of claim would not substantially prejudice the City in maintaining its defense on themerits, given the passage of time and the transient nature of the pothole in the street over whichthe petitioner allegedly tripped and [*2]fell (see Zarrello vCity of New York, 61 NY2d 628, 630 [1983]; Matter of Wright v City of New York, 99 AD3d 717 [2012]; Matter of Mitchell v Town ofGreenburgh, 96 AD3d 852 [2012]; Matter of Khalid v City of New York, 91 AD3d 779, 780 [2012];Matter of Aguilar v Town of Islip, 294 AD2d 358, 359 [2002]; Caselli v City of NewYork, 105 AD2d 251, 253 [1984]).
The petitioner's remaining contentions pertain to matter dehors the record and have not beenconsidered in the determination of the appeal (see Matter of Tonissen v Huntington U.F.S.D., 80 AD3d 704, 706[2011]). Rivera, J.P., Florio, Dickerson, Leventhal and Lott, JJ., concur.