| Matter of Placido v County of Orange |
| 2013 NY Slip Op 08252 [112 AD3d 722] |
| December 11, 2013 |
| Appellate Division, Second Department |
| In the Matter of Robin Placido,Respondent, v County of Orange, Appellant. |
—[*1] Mark D. Stern, Goshen, N.Y., for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the County of Orange appeals from an order of the SupremeCourt, Orange County (Slobod, J.), dated February 4, 2013, which granted the petition.
Ordered that the order is reversed, on the law, with costs, and the petition is denied.
Among the factors to be considered by a court in determining whether leave to servea late notice of claim should be granted is whether the municipality acquired actualknowledge of the essential facts constituting the claim within 90 days after the claimarose or within a reasonable time thereafter, whether the petitioner had a reasonableexcuse for the failure to serve a timely notice of claim, and whether the delay wouldsubstantially prejudice the municipality in maintaining its defense on the merits (see Matter of Vicari v Grand Ave.Middle School, 52 AD3d 838, 838-839 [2008]; Matter of Groves v New York CityTr. Auth., 44 AD3d 856 [2007]). While the presence or the absence of any oneof the factors is not necessarily determinative (see Matter of Vicari v Grand Ave.Middle School, 52 AD3d at 839; Matter of Chambers v Nassau County Health Care Corp., 50AD3d 1134 [2008]), whether the municipality had actual knowledge of the essentialfacts constituting the claim is of great importance (see Matter of Gonzalez v City of New York, 60 AD3d1058 [2009]; Matter ofFelice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2008]).
Generally, the phrase "facts constituting the claim" is understood to mean the factswhich would demonstrate a connection between the happening of the accident and anynegligence on the part of the municipality (see Saafir v Metro-North Commuter R.R.Co., 260 AD2d 462 [1999]). The municipality must have notice or knowledge of thespecific claim and not merely some general knowledge that a wrong has been committed(see Arias v New York CityHealth & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008];Pappalardo v City of NewYork, 2 AD3d 699 [2003]).
The petitioner herein presented no evidence that the County of Orange obtainedactual knowledge of the essential facts underlying the claim within 90 days of the allegedaccident or within [*2]a reasonable time thereafter.
Moreover, the petitioner failed to provide a reasonable excuse for the failure to servea timely notice of claim. Although one of the factors contained in General MunicipalLaw § 50-e (5) is "whether the claimant in serving a notice of claim made anexcusable error concerning the identity of the public corporation against which the claimshould be asserted," the petitioner's failure to ascertain the County's ownership of the busallegedly involved in the accident was due to a lack of due diligence in investigating thematter (see Bridgeview atBabylon Cove Homeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d404, 405-406 [2007]; Matter of Nieves v Girimonte, 309 AD2d 753, 754[2003]; see also Arias v NewYork City Hous. Auth., 40 AD3d 298, 299 [2007]; Jenkins v New York City Hous.Auth., 29 AD3d 319, 319-320 [2006]).
Finally, the petitioner failed to establish that the delay did not substantially prejudicethe County's ability to conduct its own independent investigation and defend the claim onthe merits (see Matter of Landa v City of New York, 252 AD2d 525 [1998];Matter of Deegan v City of New York, 227 AD2d 620 [1996]).
Accordingly, the Supreme Court should have denied the petition. Rivera, J.P., Hall,Roman and Cohen, JJ., concur.