| Matter of Barrett v Village of Wappingers Falls |
| 2015 NY Slip Op 06138 [130 AD3d 817] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Harold Barrett,Appellant, v Village of Wappingers Falls,Respondent. |
Sobo & Sobo, LLP, Middletown, N.Y. (Edward J. Barbour and Mark P.Cambareri of counsel), for appellant.
Goldberg Segalla LLP, White Plains, N.Y. (William T. O'Connell of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5), thepetitioner appeals from an order of the Supreme Court, Dutchess County (Watson, J.),dated August 6, 2014, which denied his petition for leave to serve a late notice of claimupon the Village of Wappingers Falls.
Ordered that the order is affirmed, with costs.
"In determining whether to grant a petition for leave to serve a late notice of claim,the court 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 themerits" (Matter of Mitchell vCity of New York, 112 AD3d 940, 940 [2013]; see Matter of Destine v City ofNew York, 111 AD3d 629, 629 [2013]). "While the presence or the absence ofany one of the factors is not necessarily determinative, whether the municipality hadactual knowledge of the essential facts constituting the claim is of great importance" (Matter of Placido v County ofOrange, 112 AD3d 722, 723 [2013] [citations omitted]; see Matter of Gonzalez v City ofNew York, 60 AD3d 1058, 1059 [2009]). The determination to grant leave toserve a late notice of claim lies within the sound discretion of the Supreme Court (see Randolph v Westchester Med.Ctr., 122 AD3d 822, 823 [2014]).
Here, the petitioner failed to show that the Village of Wappingers Falls had actualknowledge of the essential facts constituting the claim within the requisite 90-day periodor a reasonable time thereafter (see Matter of Magana v Westchester County Health Care Corp.,89 AD3d 851, 852 [2011]; Argueta v New York City Health & Hosps. Corp. [Coney Is.Hosp.], 74 AD3d 713, 713-714 [2010]). Although the petitioner asserted thatthe Mayor of the Village was on the property where the subject incident occurred at thetime the incident occurred, the petitioner offered no evidence that the Village had actualknowledge of the essential facts constituting the potential claims against it (see Matter of Snyder v County ofSuffolk, 116 AD3d 1052, 1054 [2014]; Grasso v Nassau County, 109 AD3d 579, 580 [2013]; Matter of Anderson v Town ofOyster Bay, 101 AD3d 708, 709 [2012]). The petitioner also failed todemonstrate a reasonable excuse for his failure to serve a timely notice of claim upon theVillage. [*2]The petitioner's ignorance of the law did notconstitute a reasonable excuse (see Matter of Bell v City of New York, 100 AD3d 990, 990[2012]; Matter of Taylor vCounty of Suffolk, 90 AD3d 769, 770 [2011]).
Furthermore, the petitioner also failed to establish that the delay in serving his noticeof claim would not substantially prejudice the Village's ability to maintain its defense onthe merits (see Matter of Lorseille v New York City Hous. Auth., 295 AD2d 612,612 [2002]).
Accordingly, under the circumstances of this case, the Supreme Court did notimprovidently exercise its discretion in denying the petition for leave to serve a latenotice of claim upon the Village. Skelos, J.P., Hall, Roman and Duffy, JJ., concur.