| Andrews v Long Is. R.R. |
| 2013 NY Slip Op 06331 [110 AD3d 653] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Richard Andrews, Appellant, v Long IslandRailroad et al., Defendants/Third-Party Plaintiffs. Incorporated Village of Patchogue,Third-Party Defendant-Respondent. |
—[*1] Goldberg Segalla, Garden City, N.Y. (Brian McElhenny and Jesse D. Rutter ofcounsel), for third-party defendant-respondent. Zaklukiewicz, Puzo & Morrisey, LLP, Islip Terrace, N.Y. (Candace M. Bartone ofcounsel), for defendants.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Pitts, J.), dated October 19, 2012, whichdenied his motion pursuant to General Municipal Law § 50-e (5) for leave to servea late notice of claim upon the third-party defendant.
Ordered that the order is affirmed, with costs.
In determining whether to grant a motion for leave to serve a late notice of claim, thekey factors that the court must consider are whether (1) the public corporation acquiredactual knowledge of the essential facts constituting the claim within 90 days after theclaim arose or a reasonable time thereafter, (2) the claimant made an excusable errorconcerning the identity of the public corporation, (3) the delay would substantiallyprejudice the public corporation in its defense, and (4) the claimant demonstrated areasonable excuse for the failure to serve a timely notice of claim (see GeneralMunicipal Law § 50-e [5]; Matter of Mitchell v Town of Greenburgh, 96 AD3d 852[2012]; Matter of Gershanow vTown of Clarkstown, 88 AD3d 879, 880 [2011]; Matter of Iacone v Town ofHempstead, 82 AD3d 888 [2011]). Pursuant to General Municipal Law §50-e (5), a court considering a motion for leave to serve a late notice of claim upon apublic corporation must consider various factors, of which the "most important, based onits placement in the statute and its relation to other relevant factors" (Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147 [2008]; see Matter of Whittaker v NewYork City Bd. of Educ., 71 AD3d 776, 778 [2010]; Matter of Devivo v Town ofCarmel, 68 AD3d 991 [2009]), is whether the public corporation acquired actualknowledge of the essential facts constituting the claim within 90 days of the accrual ofthe claim or a reasonable time thereafter (see General Municipal Law §50-e [5]).[*2]
Here, the plaintiff failed to demonstrate that thethird-party defendant, the Incorporated Village of Patchogue, acquired actual knowledgeof the essential facts constituting the claim within 90 days after the accident or areasonable time thereafter. Even though the plaintiff served a notice of claim upon thedefendants in the main action approximately three months after the accident, there wasno showing that the Village had any knowledge of the plaintiff's accident or injury, or thelegal theory upon which liability against it was predicated, prior to being served with thethird-party summons and complaint more than eight months after the accident (see Matter of Abramovitz v City ofNew York, 99 AD3d 1000, 1001 [2012]; Matter of Khalid v City of New York, 91 AD3d 779, 780[2012]; Matter of Iacone v Town of Hempstead, 82 AD3d at 889; Matter ofNieves v Girimonte, 309 AD2d 753 [2003]). Relying upon photographs admittedlytaken more than nine months after the accident, the plaintiff contends that the Village hadnotice of the condition because the sidewalk was subsequently repaired. Even if theseunauthenticated photographs showed that the defective condition was subsequentlyrepaired (see Matter ofValentine v City of New York, 72 AD3d 981 [2010]), the plaintiff nonethelessfailed to demonstrate that the Village repaired the subject defect within 90 days after theaccident or a reasonable time thereafter (cf. Matter of Ruffino v City of New York, 57 AD3d 550,552 [2008]; Segreto v Town of Oyster Bay, 66 AD2d 796 [1978]).
Furthermore, the plaintiff failed to show that the delay of 10 months after theaccident in seeking leave to serve a late notice of claim upon the Village did notsubstantially prejudice the Village's ability to maintain a defense on the merits (seeMatter of Iacone v Town of Hempstead, 82 AD3d at 889; Matter of Gillum vCounty of Nassau, 284 AD2d 533, 534 [2001]; Kravitz v County ofRockland, 112 AD2d 352, 353 [1985]; cf. Fenton v County of Dutchess, 148AD2d 573 [1989]). Accordingly, the plaintiff's motion for leave to serve a late notice ofclaim was properly denied. Angiolillo, J.P., Hall, Roman and Cohen, JJ., concur.