| Matter of Sanchez v City of New York |
| 2014 NY Slip Op 02300 [116 AD3d 703] |
| April 2, 2014 |
| Appellate Division, Second Department |
| In the Matter of Elisa Sanchez, Respondent, v Cityof New York, Appellant. |
—[*1] Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) to deem a latenotice of claim timely served nunc pro tunc, the City of New York appeals from an orderof the Supreme Court, Kings County (Landicino, J.), dated January 9, 2013, whichgranted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the petition is denied.
In determining whether to deem a late notice of claim timely served nunc pro tunc,the court must consider whether (1) the public corporation acquired actual knowledge ofthe essential facts constituting the claim within 90 days after the claim arose or areasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for thefailure to serve a timely notice of claim and for the subsequent delay in seeking leave toserve a late notice of claim, and (3) the public corporation was substantially prejudicedby the delay in its ability to maintain its defense on the merits (see GeneralMunicipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535[2006]; Matter of Hampson vConnetquot Cent. Sch. Dist., 114 AD3d 790 [2014]; Matter of Destine v City of NewYork, 111 AD3d 629 [2013]).
Even if this Court were to excuse the petitioner's initial one-month delay, after theexpiration of the 90-day period, in serving a notice of claim, based upon her assertionthat she was unaware of the severity of her left wrist injury (see Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 151 [2008]; Matter of Hursala v SeafordMiddle School, 46 AD3d 892, 893 [2007]; Matter of Vitale v Elwood Union Free School Dist., 19 AD3d610, 611 [2005]), the petitioner failed to demonstrate a reasonable excuse for theadditional five-month delay between the time that the City disallowed the claim asuntimely and the commencement of this proceeding (see Matter of Katsiouras v City of New York, 106 AD3d916, 918 [2013]; Matter ofHill v New York City Tr. Auth., 68 AD3d 866, 867 [2009]; Matter of Smith v Baldwin UnionFree School Dist., 63 AD3d 1078, 1079 [2009]).
Furthermore, the City did not acquire actual knowledge of the essential facts [*2]constituting the claim within 90 days after the claim aroseor a reasonable time thereafter (see General Municipal Law § 50-e [1],[5]). The alleged defects indicated on a map filed with the New York City Department ofTransportation by the Big Apple Pothole and Sidewalk Protection Corporation did notsuffice to give the City actual knowledge of the essential facts underlying the petitioner'spresent claim or her theory of liability against the City (see Matter of Bell v City of NewYork, 100 AD3d 990, 991 [2012]; Matter of Khalid v City of New York, 91 AD3d 779, 780[2012]; Matter of Konstantinides v City of New York, 278 AD2d 235 [2000]).Moreover, the late notice of claim served upon the City, more than one month after the90-day statutory period had elapsed, did not provide the City with actual knowledge ofthe essential facts constituting the claim within a reasonable time after the expiration ofthe statutory period (see Matterof Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790 [2014]; Matter of Valila v Town ofHempstead, 107 AD3d 813, 814 [2013]).
The City maintains that it did not conduct any investigation of this claim after itdisallowed the claim as untimely. The petitioner failed to submit evidence sufficient torebut the City's contention that the delay of more than nine months between the time ofthe accident and the time of the commencement of this proceeding would substantiallyprejudice the City's ability to conduct an investigation of the claim at this late date, giventhe transitory nature of the alleged sidewalk defect (see Matter of Bell v City of NewYork, 100 AD3d at 991; Matter of Valentine v City of New York, 72 AD3d 981,982 [2010]). Hall, J.P., Austin, Sgroi and Duffy, JJ., concur.