| Matter of Klass v City of New York |
| 2013 NY Slip Op 01083 [103 AD3d 800] |
| February 20, 2013 |
| Appellate Division, Second Department |
| In the Matter of Eion Klass et al.,Respondents, v City of New York, Appellant. |
—[*1] Jeffrey H. Schwartz, Brooklyn, N.Y., for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the City of New York appeals from an order of the SupremeCourt, Kings County (Ash, J.), dated December 2, 2011, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the petition is denied, and the proceeding is dismissed.
Pursuant to General Municipal Law § 50-e (5), a court has the discretion topermit the service of a late notice of claim. The relevant factors for the court to considerinclude whether (1) the petitioner demonstrated a reasonable excuse for failing to serve atimely notice of claim, (2) the municipality acquired actual knowledge of the essentialfacts constituting the claim within 90 days from its accrual or a reasonable timethereafter, and (3) the delay would substantially prejudice the municipality in maintainingits defense on the merits (see General Municipal Law § 50-e [5]; Matter of Henriques v City of NewYork, 22 AD3d 847, 848 [2005]; Christoforatos v City of New York,285 AD2d 622 [2001]; Matter of Landa v City of New York, 252 AD2d 525,526 [1998]).
The petitioners did not demonstrate a reasonable excuse for their failure to serve atimely notice of claim. The petitioners' assertion that they only recently discovered thatthey had a claim against the City is not an acceptable excuse (see Matter of Abramovitz v City ofNew York, 99 AD3d 1000, 1001 [2012]; Matter of Thompson v City of New York, 95 AD3d 1024,1025 [2012]; Bridgeview atBabylon Cove Homeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d404, 405-406 [2007]), and they failed to submit any medical evidence to supporttheir allegation that they were more concerned and preoccupied with their allegedinjuries than in asserting a claim for damages (see Matter of Taylor v County of Suffolk, 90 AD3d 769,770 [2011]; Matter of Aliberti v City of Yonkers, 302 AD2d 456 [2003];Matter of Caruso v County of Westchester, 220 AD2d 746 [1995]).
The petitioners contend that the City acquired timely, actual knowledge of theessential facts constituting the claim by reason of a police accident report filled out by theresponding police officer at the scene of the subject vehicular accident. The fact that theNew York City Police Department had knowledge of this accident, without more, cannotbe considered actual knowledge [*2]of the essential factsunderlying the claim against the City (see Matter of Mitchell v Town of Greenburgh, 96 AD3d852, 852-853 [2012]; Hardayal v City of New York, 281 AD2d 593 [2001];Matter of Leiblein v Clark, 207 AD2d 348, 350 [1994]; Matter of Russ vNew York City Hous. Auth., 198 AD2d 361, 362 [1993]; Matter of Perry v Cityof New York, 133 AD2d 692, 693 [1987]; Caselli v City of New York, 105AD2d 251, 255 [1984]). The petitioners' further assertion that the driver of the offendingvehicle must have reported the accident to her superiors at the New York CityDepartment of Transportation was completely unsubstantiated (see Washington vCity of New York, 72 NY2d 881, 883 [1988]; Matter of National Grange Mut. Ins. Co. v Town of Eastchester,48 AD3d 467, 468 [2008]; State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 35AD3d 718 [2006]).
Furthermore, the petitioners failed to demonstrate that the 10-month delay in servinga notice of claim after the 90-day statutory period expired did not substantially prejudicethe City in maintaining its defense on the merits (see Brandi v City of New York, 90 AD3d 751 [2011]; Matter of Hill v New York City Tr.Auth., 68 AD3d 866, 867 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 152 [2008]).
The petitioners' remaining contentions, which are based upon new factualallegations, are improperly raised for the first time on appeal and, accordingly, are notproperly before this Court (see Matter of Zaid v City of New York, 87 AD3d661, 663 [2011]; Matter ofTonissen v Huntington U.F.S.D., 80 AD3d 704, 706 [2011]; Provident Bank v Giannasca,55 AD3d 812 [2008]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.