| Matter of Bhargava v City of New York |
| 2015 NY Slip Op 06140 [130 AD3d 819] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kamla Bhargava,Respondent, v City of New York, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis Caputo and JaneL. Gordon of counsel), for appellant.
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 defendant appeals from an order of the Supreme Court, Richmond County(Aliotta, J.), dated April 9, 2014, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim or to deem a latenotice of claim timely served nunc pro tunc, the court must consider whether (1) themunicipality acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or a reasonable time thereafter, (2) the petitionerdemonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3)the municipality was substantially prejudiced by the delay in its ability to maintain itsdefense on the merits (see General Municipal Law § 50-e [5]; Matter of Murray v Village ofMalverne, 118 AD3d 798, 799 [2014]; Matter of Valila v Town of Hempstead, 107 AD3d 813,814 [2013]; Matter of Whittakerv New York City Bd. of Educ., 71 AD3d 776 [2010]). Actual knowledge of theessential facts underlying the claim means "knowledge of the facts that underlie the legaltheory or theories on which liability is predicated in the [proposed] notice of claim; the[municipality] need not have specific notice of the theory or theories themselves" (Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 148 [2008]).
Here, the petitioner did not demonstrate a reasonable excuse for the failure to serve atimely notice of claim and for the delay in filing the petition (see Matter of Hampson vConnetquot Cent. Sch. Dist., 114 AD3d 790, 791 [2014]; Matter of Bell v City of NewYork, 100 AD3d 990 [2012]). The petitioner's ignorance of the law did notconstitute a reasonable excuse (see Matter of Hampson v Connetquot Cent. Sch.Dist., 114 AD3d at 791; Matter of Taylor v County of Suffolk, 90 AD3d 769, 770[2011]; Meyer v County ofSuffolk, 90 AD3d 720, 721 [2011]). Furthermore, the petitioner failed toexplain the additional lapse of two months between the time she served the late notice ofclaim without court authorization and the commencement of the instant proceeding, interalia, to deem the late notice of claim timely served nunc pro tunc (see Matter ofHampson v Connetquot Cent. Sch. Dist., 114 AD3d at 791; Matter of Destine v City of NewYork, 111 AD3d 629 [2013]; Matter of Gobardhan v City of New York, 64 AD3d 705,706 [2009]).
[*2] The petitioner also failedto demonstrate that the respondent, the City of New York, obtained timely, actualknowledge of the essential facts constituting the claim. The incident report prepared bythe City's Department of Parks and Recreation on the day of the accident did not providethe City with actual notice of the essential facts constituting the petitioner's claim that theCity was negligent in allowing the boardwalk upon which the petitioner allegedly felland sustained injuries to be operated, managed, controlled, and maintained in adangerous and hazardous condition (see Kuterman v City of New York, 121 AD3d 646 [2014];Matter of Charles v City of NewYork, 67 AD3d 793 [2009]; Matter of Wright v City of New York, 66 AD3d 1037,1038 [2009]). Moreover, the late notice of claim served upon the City 45 days after the90-day statutory period had elapsed was served too late to provide the City with actualknowledge of the essential facts constituting the claim within a reasonable time after theexpiration of the statutory period (see Matter of Murray v Village of Malverne,118 AD3d at 799; Matter ofSanchez v City of New York, 116 AD3d 703, 704 [2014]; Matter of Valila vTown of Hempstead, 107 AD3d at 815).
The City maintains that it did not conduct any investigation of this claim prior tobeing served with the petition. The petitioner failed to rebut the City's contention that the3
Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding for leave to serve a late notice of claim or to deem a late notice of claimtimely served nunc pro tunc. Skelos, J.P., Hall, Sgroi and Barros, JJ., concur.