| Nurena v Westchester County |
| 2014 NY Slip Op 05965 [120 AD3d 781] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Maria Nurena, Appellant, v WestchesterCounty et al., Respondents. |
Frumkin & Hunter LLP, White Plains, N.Y. (William D. Frumkin and ElizabethE. Hunter of counsel), for appellant.
Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro-Blanco andChristopher J. Inzero of counsel), for respondents.
In an action, inter alia, to recover damages for employment discrimination on thebasis of disability in violation of Executive Law § 296, the plaintiff appealsfrom an order of the Supreme Court, Westchester County (Jamieson, J.), dated June 3,2013, which denied her motion for leave to serve a late notice of claim and, in effect,directed the dismissal of the complaint.
Ordered that the order is affirmed, with costs.
"In determining whether to grant an application for leave to serve a late notice ofclaim or to deem a late notice of claim timely served nunc pro tunc, the court mustconsider whether (1) the public corporation or its attorney or insurance carrier 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 against which the claim should beasserted, (3) the claimant demonstrated a reasonable excuse for the failure to serve atimely notice of claim (see General Municipal Law § 50-e [5]), and(4) the delay would substantially prejudice the public corporation in its defense on themerits" (Platt v New York CityHealth & Hosps. Corp., 105 AD3d 1026, 1027 [2013]; see Matter of Mitchell v Town ofGreenburgh, 96 AD3d 852, 852 [2012]; Matter of Gershanow v Town of Clarkstown, 88 AD3d879, 880 [2011]). "While the presence or the absence of any one of the factors is notnecessarily determinative, whether the municipality had actual knowledge of the essentialfacts constituting the claim is of great importance" (Matter of Iacone v Town of Hempstead, 82 AD3d 888,888-889 [2011] [citations omitted]; see Matter of Gonzalez v City of New York, 60 AD3d1058, 1059 [2009]; Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147[2008]). "A petition for leave to serve a late notice of claim is addressed to the sounddiscretion of the court" (Matterof Harper v City of New York, 69 AD3d 939, 940 [2010]; see Matter of Blair v PleasantvilleUnion Free School Dist., 52 AD3d 827, 827 [2008]; Matter of McLean v Valley StreamUnion Free School Dist. 30, 48 AD3d 571, 571-572 [2008]).
Here, in support of her motion, the plaintiff did not furnish a reasonable excuse forher failure to serve a timely notice of claim. Further, contrary to the plaintiff's contention,her December 9, 2009, letter, sent approximately three months after the 90-day statutoryperiod had elapsed, did not provide the defendant Westchester County with actualknowledge of the essential [*2]facts constituting theclaim within a reasonable time after the expiration of the statutory period (see Matter of Sanchez v City ofNew York, 116 AD3d 703 [2014]; Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d790, 791 [2014]; Matter ofValila v Town of Hempstead, 107 AD3d 813, 815 [2013]). Additionally, theplaintiff failed to satisfy her initial burden of demonstrating a lack of substantialprejudice to the defendants should service of the late notice of claim be allowed. Thus,the Supreme Court providently exercised its discretion in denying the plaintiff's motionfor leave to serve a late notice of claim.
"The failure to timely serve a notice of claim in a tort action against an employee of amunicipality who was acting within the scope of his [or her] public employment and inthe discharge of his [or her] duties when the tort allegedly was committed requiresdismissal of the complaint" (Dorce v United Rentals N. Am., Inc., 78 AD3d 1110, 1110[2010]; see generally General Municipal Law § 50-e [1] [b]; Analisa Salon, Ltd. v Elide Props.,LLC, 46 AD3d 721, 725 [2007]; Smith v Scott, 294 AD2d 11, 18-19[2002]). Contrary to the plaintiff's contentions, under the circumstances of this case, herfailure to serve a notice of claim requires the dismissal of the complaint insofar asasserted against the defendants Thomas Belfiore and Demosthenes Long as well as theCounty, as these individual defendants were acting within the scope of their publicemployment and in the discharge of their duties when they committed the acts alleged bythe plaintiff. Skelos, J.P., Dickerson, Cohen and Duffy, JJ., concur.