| Matter of Anderson v Town of Oyster Bay |
| 2012 NY Slip Op 08302 [101 AD3d 708] |
| December 5, 2012 |
| Appellate Division, Second Department |
| In the Matter of Thomas Anderson, Respondent, v Town ofOyster Bay, Appellant. |
—[*1] Fink & Paltz (Arnold DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the Town of Oyster Bay appeals from an order of the Supreme Court, NassauCounty (Galasso, J.), entered November 22, 2011, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, the court must considercertain factors, including, inter alia, whether the petitioner demonstrated a reasonable excuse forfailing to serve a timely notice of claim, whether the public corporation acquired actualknowledge of the essential facts constituting the claim within 90 days after the claim arose orwithin a reasonable time thereafter, and whether the delay would substantially prejudice thepublic corporation in defending on the merits (see General Municipal Law § 50-e[5]; Matter of Wright v City of NewYork, 99 AD3d 717 [2012]; Matter of Mitchell v Town of Greenburgh, 96 AD3d 852 [2012];Matter of Coplon v Town ofEastchester, 82 AD3d 1095, 1095-1096 [2011]).
The petitioner failed to demonstrate a reasonable excuse for his failure to serve a timelynotice of claim. His conclusory assertion that his prior attorneys failed to file a timely notice ofclaim due to an unspecified error was insufficient (see Matter of Groves v New York City Tr. Auth., 44 AD3d 856,857 [2007]; Matter of Roland v NassauCounty Dept. of Social Servs., 35 AD3d 477, 478 [2006]; Lopez v New York CityHous. Auth., 193 AD2d 473, 474 [1993]).
Furthermore, the petitioner failed to establish that the Town of Oyster Bay acquired actualknowledge of the essential facts constituting the claim within 90 days after the subject accidentor a reasonable time thereafter. The petitioner's oral report of the injury to his supervisor aboutone month after the accident and the filing of a workers' compensation claim with his employertwo months after the accident did not provide the Town with actual knowledge of the accident(see Matter of Grant v Nassau CountyIndus. Dev. Agency, 60 AD3d 946, 948 [2009]; Williams v City of NiagaraFalls, 244 AD2d 1006, 1007 [1997]). Similarly, even though two town representatives [*2]were present on a regular basis at the construction site where theaccident occurred, there was no evidence that they were aware of the essential facts constitutingthe claim (see Matter of Bruzzese v Cityof New York, 34 AD3d 577, 578 [2006]; Matter of Carpenter v City of New York, 30 AD3d 594, 595[2006]; Matter of Pico v City of NewYork, 8 AD3d 287, 288 [2004]; Matter of Shapiro v County of Nassau, 208AD2d 545 [1994]). Even if the Town had been aware of the workers' compensation claim formfiled with the petitioner's employer two months after the accident, that form merely indicated thatthe petitioner slipped and fell while carrying a wooden form. That claim form was insufficient toprovide actual knowledge of the petitioner's present claim that he tripped and fell into afour-foot-deep trench due to the Town's negligence in the ownership, operation, repair,inspection, maintenance, and control of the worksite location (see Matter of Werner v Nyack Union FreeSchool Dist., 76 AD3d 1026, 1027 [2010]; Matter of Catuosco v City of New York, 62 AD3d 995, 996[2009]; Matter of Formisano vEastchester Union Free School Dist., 59 AD3d 543, 544 [2009]; Matter of Schifano v City of NewYork, 6 AD3d 259, 260-261 [2004]).
In addition, the petitioner failed to rebut the Town's assertion that his delay of more thaneight months in filing this petition prejudiced its ability to investigate the alleged dangerouscondition and to interview potential witnesses while their recollections were fresh, especiallysince the petitioner filed an amended workers' compensation claim form over one year after theaccident which altered his prior statement that there were no witnesses to the accident (see Matter of Iacone v Town ofHempstead, 82 AD3d 888 [2011]; Matter of Gillum v County of Nassau, 284AD2d 533 [2001]).
Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.