| Matter of Mitchell v City of New York |
| 2013 NY Slip Op 08636 [112 AD3d 940] |
| December 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Melinda Mitchell et al.,Respondents, v City of New York, Appellant. |
—[*1] Jeffrey A. Rothman, New York, N.Y., and Beldock Levine & Hoffman LLP, NewYork, N.Y. (Jonathan C. Moore and Jenn Rolnick Borchetta of counsel), for respondents(one brief filed).
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim upon the City of New York, the appeal is from an order of theSupreme Court, Kings County (Pfau, J.), entered October 11, 2012, which granted thepetition.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, and the petition is denied.
In determining whether to grant a petition for leave to serve a late notice of claim, thecourt must consider all relevant circumstances, including whether (1) the publiccorporation acquired actual knowledge of the essential facts constituting the claim within90 days after the claim arose or a reasonable time thereafter, (2) the claimantdemonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3)the delay would substantially prejudice the public corporation in its defense on the merits(see General Municipal Law § 50-e [5]; Matter of Destine v City of NewYork, 111 AD3d 629 [2d Dept 2013]; Matter of Rush v County of Suffolk, 35 AD3d 619 [2006]).
In the instant matter, the petitioners offered no explanation at all for their delay,much less demonstrate a reasonable excuse for the failure to serve a timely notice ofclaim (see Hendrix v City ofNew York, 76 AD3d 613 [2010]).
Moreover, the appellant, City of New York, did not acquire timely, actual knowledgeof the essential facts constituting the claims. The evidence submitted by the petitionersdid not establish that the City had actual knowledge of the essential facts constituting theclaims of, inter alia, false arrest, false imprisonment, malicious prosecution, assault, andbattery within 90 days following their accrual or a reasonable time thereafter (see Williams v Nassau CountyMed. Ctr., 6 NY3d 531, 537 [2006]; Matter of Destine v City of New York, 111 AD3d 629[2013]; Matter of Rivera v Cityof New York, 88 AD3d 1004, 1005 [2011]; Matter of Blanco v City [*2]of NewYork, 78 AD3d 1048 [2010]; Matter of Bush v City of New York, 76 AD3d 628 [2010]).
Finally, the petitioners failed to establish that the delay in serving their notice ofclaim would not substantially prejudice the City in maintaining its defense on the meritswith respect to the claims that were the subject of that notice (see Matter of Destine v City ofNew York, 111 AD3d 629 [2013]; Matter of Rivera v City of New York, 88 AD3d 1004[2011]; Matter of Blanco v Cityof New York, 78 AD3d 1048 [2010]).
Accordingly, the Supreme Court should have denied the petition for leave to servethe late notice of claim. Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.