| Matter of Murray v Village of Malverne |
| 2014 NY Slip Op 04201 [118 AD3d 798] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Nigel Murray,Appellant, v Village of Malverne et al.,Respondents. |
G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellant.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim or to deem a late notice of claim timely served nunc protunc, the petitioner appeals from an order of the Supreme Court, Nassau County(Diamond, J.), entered May 28, 2013, which denied the petition and dismissed theproceeding.
Ordered that the order is affirmed, with costs.
In determining whether to deem a late notice of claim timely served nunc pro tunc orto grant leave to serve a late notice of claim, the key factors that the court must considerare whether (1) the public corporation acquired actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose or a reasonable time thereafter,(2) the claimant made an excusable error concerning the identity of the publiccorporation, (3) the delay would substantially prejudice the public corporation in itsdefense, and (4) the claimant demonstrated a reasonable excuse for the failure to serve atimely notice of claim and for the subsequent delay in seeking leave to serve a late noticeof claim (see General Municipal Law § 50-e [5]; Matter of Sanchez v City of NewYork, 116 AD3d 703 [2014]; Matter of Valila v Town of Hempstead, 107 AD3d 813,814 [2013]; Matter of Mitchellv Town of Greenburgh, 96 AD3d 852 [2012]; Matter of Iacone v Town ofHempstead, 82 AD3d 888 [2011]).
While the petitioner's error in serving the County of Nassau rather than the Village ofMalverne may have excused the initial delay between the time that he served the noticeof claim upon Nassau County and the discovery of the error, the petitioner failed toproffer a reasonable excuse for the additional delay between the time that he discoveredthe error and the filing of this petition (see Matter of Valila v Town ofHempstead, 107 AD3d at 814; Matter of Burgess v County of Suffolk, 56 AD3d 769, 770[2008]; State Farm Mut. Auto.Ins. Co. v New York City Tr. Auth., 35 AD3d 718 [2006]).
Furthermore, the respondents did not acquire timely, actual knowledge of theessential facts constituting the petitioner's claims. The evidence submitted by thepetitioner did not establish [*2]that the respondents hadactual knowledge of the essential facts constituting his claims of, inter alia, false arrest,false imprisonment, malicious prosecution, assault, and battery within 90 days followingtheir accrual or a reasonable time thereafter (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537[2006]; Matter of Mitchell vCity of New York, 112 AD3d 940, 940-941 [2013]; Matter of Destine v City of NewYork, 111 AD3d 629 [2013]; Matter of Rivera v City of New York, 88 AD3d 1004, 1005[2011]). Moreover, the late notice of claim the petitioner served on the Villageapproximately one month after the 90-day statutory period had elapsed was served toolate to provide the Village with actual knowledge of the essential facts constituting theclaim within a reasonable time after the expiration of the statutory period (see Matterof Valila v Town of Hempstead, 107 AD3d at 815; Matter of Katsiouras v City of NewYork, 106 AD3d 916, 918 [2013]).
The respondents maintain that they did not conduct any investigation of this claimprior to being served with the petition. The petitioner failed to submit evidence sufficientto rebut the respondents' contention that the nearly two-month delay in commencing thisproceeding, after the expiration of the 90-day statutory period, would substantiallyprejudice their ability to conduct an investigation of the claim (see Matter of Mitchellv City of New York, 112 AD3d at 941; Matter of Valila v Town ofHempstead, 107 AD3d at 815; Matter of Rivera v City of New York, 88AD3d at 1005).
Accordingly, the Supreme Court properly dismissed the proceeding to serve a latenotice of claim or to deem a late notice of claim timely served nunc pro tunc. Skelos, J.P.,Leventhal, Cohen, LaSalle and Barros, JJ., concur.