| Grasso v Nassau County |
| 2013 NY Slip Op 05674 [109 AD3d 579] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Michael Grasso et al., Appellants, v Nassau Countyet al., Defendants, and Locust Valley Fire Department,Respondent. |
—[*1] Siler & Ingber, LLP, Mineola, N.Y. (Jeffrey B. Siler of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County(Diamond, J.), entered June 5, 2012, which, upon an order of the same court enteredApril 25, 2012, granting the motion of the defendant Locust Valley Fire Department todismiss the complaint insofar as asserted against it for failure to serve a timely notice ofclaim and denying the plaintiffs' cross motion pursuant to General Municipal Law§ 50-e (5) for leave to serve a late notice of claim upon the defendant LocustValley Fire Department, dismissed the complaint insofar as asserted against thatdefendant.
Ordered that the judgment is affirmed, with costs.
Contrary to the contention of the defendant Locust Valley Fire Department(hereinafter the Fire Department), the plaintiffs properly brought their application forleave to serve a late notice of claim as a cross motion in the course of this pending action,rather than as a special proceeding (see General Municipal Law § 50-e [5],[7]; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book7B, CPLR C2211:2, C2211:3). Nevertheless, under the circumstances of this case, theSupreme Court providently exercised its discretion in denying the plaintiffs' cross motionfor leave to serve a late notice of claim upon the Fire Department.
General Municipal Law § 50-e (7) provides, in pertinent part, "[w]here theapplication is for leave to serve a late notice of claim, it shall be accompanied by a copyof the proposed notice of claim." Here, no proposed notice of claim was submitted withthe cross motion. This was sufficient justification by itself to deny the cross motion(see General Municipal Law § 50-e [7]; Matter of Farfan v City of NewYork, 101 AD3d 714, 715 [2012]; Matter of Estate of Curreri v New York City Hous. Auth., 87AD3d 1064, 1065 [2011]; Matter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d920, 922 [2007]). In any event, the plaintiffs did not demonstrate a reasonableexcuse for their failure to serve a timely notice of claim upon the Fire Department. Theplaintiffs' unsubstantiated claim [*2]of law office failureby their former attorney does not constitute a reasonable excuse for the failure to serve atimely notice of claim (seeMatter of Hill v New York City Tr. Auth., 68 AD3d 866, 867 [2009]; Matter of Smith v Baldwin UnionFree School Dist., 63 AD3d 1078, 1079 [2009]; Matter of Deegan v City ofNew York, 227 AD2d 620 [1996]).
Furthermore, the evidence submitted by the plaintiffs did not establish that the FireDepartment had actual knowledge of the essential facts constituting the claim within thetime specified in General Municipal Law § 50-e (1) (a) or a reasonable timethereafter. While the plaintiffs asserted that the Fire Department's representatives werepresent at the scene at the time of the accident, there was no evidence that they wereaware of the facts constituting the plaintiffs' claims of medical malpractice and wrongfuldeath against the Fire Department (see Matter of Anderson v Town of Oyster Bay, 101 AD3d708, 709 [2012]; Matter ofBruzzese v City of New York, 34 AD3d 577, 578 [2006]; Matter of Pico v City of NewYork, 8 AD3d 287, 288 [2004]). Moreover, the plaintiffs failed to establish thatany accident report, medical record, or media report sufficed to convey to the FireDepartment actual knowledge of the essential facts constituting the claims against it (see Williams v Nassau CountyMed. Ctr., 6 NY3d 531, 537 [2006]; Matter of Ramos-Elizares v Westchester County HealthcareCorp., 94 AD3d 1130, 1131 [2012]; Contreras v 357 Dean St. Corp., 77 AD3d 604, 606 [2010];Matter of O'Mara v Town of Cortlandt, 210 AD2d 337, 338 [1994]; Matter ofRuss v New York City Hous. Auth., 198 AD2d 361 [1993]).
In addition, the plaintiffs failed to demonstrate that the more-than-one-year delaysince the date of the accident in seeking leave to serve a late notice of claim will notsubstantially prejudice the Fire Department in maintaining its defense on the merits (see Matter of Bell v City of NewYork, 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]).
Since the plaintiffs failed to serve a timely notice of claim upon the Fire Department,the Supreme Court properly granted the Fire Department's motion to dismiss thecomplaint insofar as asserted against it (see O'Brien v City of Syracuse, 54 NY2d353, 358-359 [1981]).
The plaintiffs' remaining contentions are without merit or were improperly raised forthe first time in their reply papers (see Matter of Catherine G. v County of Essex, 3 NY3d175, 179 [2004]; Perre v Town of Poughkeepsie, 300 AD2d 379, 380[2002]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.