| Matter of Valila v Town of Hempstead |
| 2013 NY Slip Op 04345 [107 AD3d 813] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Dominic Valila,Appellant, v Town of Hempstead, Respondent. |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Donna A.Napolitano of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the petitioner appeals from an order of the Supreme Court,Nassau County (Phelan, J.), entered May 22, 2012, which denied the petition and, ineffect, dismissed the proceeding.
Ordered that the order is affirmed, with costs.
In determining whether to grant a petition for leave to serve a late notice of claim, acourt must consider whether the claimant demonstrated a reasonable excuse for thefailure 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 claimarose or a reasonable time thereafter, whether the claimant made an excusable errorconcerning the identity of the public corporation, and whether the delay wouldsubstantially prejudice the public corporation in its defense (see GeneralMunicipal Law § 50-e [5]; Matter of Gershanow v Town of Clarkstown, 88 AD3d879, 880 [2011]; Matter ofAmbrico v Lynbrook Union Free School Dist., 71 AD3d 762, 763 [2010]; Matter of Ruffino v City of NewYork, 57 AD3d 550, 551 [2008]).
The petitioner's mistaken belief that his employer at the time of his accident hadentered into a contract with the County of Nassau rather than the Town of Hempsteadwas not an acceptable excuse, given his failure to explain the additional delay betweenthe time that he discovered the error and the filing of this petition (see Matter of Burgess v County ofSuffolk, 56 AD3d 769, 770 [2008]; State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 35AD3d 718 [2006]; Matter of Dell'Italia v Long Is. R.R. Corp., 31 AD3d 758,759 [2006]; Matter of Morris v County of Suffolk, 88 AD2d 956, 956-957[1982], affd 58 NY2d 767 [1982]).
Furthermore, the Town did not acquire timely, actual knowledge of the essentialfacts constituting the claim. While the petitioner asserted that the Town's employees werepresent at the site at the time of the accident, there was no evidence that they were awareof the facts constituting the claim of negligence (see Matter of Anderson v Town of Oyster Bay, 101 AD3d708, 709 [2012]; Matter[*2]of Bruzzese v City of New York, 34 AD3d577, 578 [2006]; Matter ofPico v City of New York, 8 AD3d 287, 288 [2004]). In addition, there was noevidence that the Town had notice of any newspaper articles reporting the accident(see Matter of Russ v New York City Hous. Auth., 198 AD2d 361 [1993]). Inany event, the newspaper article submitted by the petitioner was insufficient to providethe Town with actual knowledge of the facts constituting the petitioner's claim of theTown's negligence and his injuries (see Matter of Keyes v City of New York, 89 AD3d 1086[2011]; Matter of O'Mara v Town of Cortlandt, 210 AD2d 337, 338 [1994];Wencek v County of Chautauqua, 132 AD2d 950 [1987]). Moreover, the latenotice of claim served upon the Town more than one month after the 90-day statutoryperiod had elapsed did not provide the Town with actual knowledge of the essential factsconstituting the claim within a reasonable time after the expiration of the statutoryperiod. Finally, the petitioner failed to demonstrate that the nearly two-month delay incommencing this proceeding would not substantially prejudice the Town in maintainingits defense, given the lack of notice and the transitory nature of the allegedly defectivecondition (see Matter of Bell vCity of New York, 100 AD3d 990 [2012]; Matter of Valentine v City of New York, 72 AD3d 981,982 [2010]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 153 [2008]).Accordingly, the Supreme Court providently exercised its discretion in denying thepetition.
We have not considered the petitioner's remaining contentions, which wereimproperly raised for the first time in his reply papers before the Supreme Court orpertain to matter dehors the record (see Matter of Minkowicz v City of New York, 100 AD3d1000 [2012]; Smith vCounty of Suffolk, 61 AD3d 743 [2009]). Angiolillo, J.P., Balkin, Austin andMiller, JJ., concur.