| Randolph v Westchester Med. Ctr. |
| 2014 NY Slip Op 07999 [122 AD3d 822] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| David Randolph, Appellant, v WestchesterMedical Center, Respondent. |
David Randolph, White Plains, N.Y., for appellant pro se.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y.(Claudine L. Weis of counsel), for respondent.
In an action to recover damages for dental malpractice and lack of informed consent,the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Westchester County (Walker, J.), entered July 1, 2011, as denied that branch ofhis motion which was, in effect, for leave to serve a late notice of claim.
Ordered that the order is affirmed insofar as appealed from, 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 Nurena v WestchesterCounty, 120 AD3d 781, 781 [2014]; Matter of Mitchell v Town of Greenburgh, 96 AD3d 852,852 [2012]). "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]). The determination to grant leave to serve a late notice of claim lies within thesound discretion of the Supreme Court (see Hasmath v Cameb, 5 AD3d 438, 439 [2004]).
Here, in support of his motion, the plaintiff failed to proffer a reasonable excuse forhis failure to serve a timely notice of claim. "[A] claimant's ignorance of the notice ofclaim requirement is not an acceptable excuse" (Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d at 150). Further, since the defendant was notserved with process in this action until January 1, 2011, which was more than threemonths after 90-day statutory period had elapsed, the summons and complaint did notprovide the defendant with actual knowledge of the essential facts constituting the claimwithin a reasonable time after the expiration of the statutory period (see [*2]Nurena v Westchester County, 120 AD3d at 782).Additionally, the plaintiff failed to satisfy his initial burden of demonstrating a lack ofsubstantial prejudice to the defendant should service of the late notice of claim beallowed.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court providently exercised its discretion in denying thatbranch of the plaintiff's motion which was, in effect, for leave to serve a late notice ofclaim. Leventhal, J.P., Hall, Austin and Roman, JJ., concur.