| Matter of Lawhorne v City of New York |
| 2015 NY Slip Op 08734 [133 AD3d 856] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Renee Lawhorne,Respondent, v City of New York, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Ellen Ravitch of counsel), for appellant.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto deem a late notice of claim timely served nunc pro tunc, the City of New York appealsfrom a judgment of the Supreme Court, Kings County (Baynes, J.), dated October 25,2013, 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 deem a late notice of claim timely servednunc pro tunc, the court must consider whether (1) the municipality acquired actualknowledge of the essential facts constituting the claim within 90 days after the claimarose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excusefor the failure to serve a timely notice of claim, and (3) the municipality was substantiallyprejudiced by the delay in its ability to maintain its defense on the merits (seeGeneral Municipal Law § 50-e [5]; Matter of Bhargava v City of New York, 130 AD3d 819[2015]; Matter of Murray vVillage of Malverne, 118 AD3d 798, 799 [2014]; Matter of Klass v City of NewYork, 103 AD3d 800 [2013]). "While the presence or the absence of any one ofthe factors is not necessarily determinative, whether the municipality had actualknowledge of the essential facts constituting the claim is of great importance" (Matter of Barrett v Village ofWappingers Falls, 130 AD3d 817, 818 [2015] [internal quotation marksomitted]; see Matter of Romeo v Long Is. Power Auth., 133 AD3d 667 [2d Dept 2015]; Matter ofIacone v Town of Hempstead, 82 AD3d 888, 888-889 [2011]).
Here, the petitioner failed to proffer any proof that the City acquired actualknowledge of the essential facts constituting the claim within 90 days of the incident or areasonable time thereafter (see General Municipal Law § 50-e [5];Williams v Nassau County Med.Ctr., 6 NY3d 531 [2006]).
Furthermore, the petitioner failed to demonstrate a reasonable excuse for her failureto serve a timely notice of claim. The petitioner's assertions that she mistakenly believedthat another law firm which allegedly employed an unspecified investigator with whomshe had spoken a few days after the accident was representing her and that she did notknow that she had to serve a notice of claim upon the City were insufficient to excuse thefailure to serve a timely notice of claim (see Matter of Bruzzese v City of New York, 34 AD3d 577,578 [2006]; Matter of Flores vCounty of Nassau, 8 AD3d 377 [2004]; Matter of Pico v City of New York, 8 AD3d 287 [2004]).Moreover, the petitioner [*2]failed to rebut the City'sassertion that the more than five-month delay between the expiration of the 90-daystatutory period and the commencement of this proceeding would substantially prejudiceits ability to conduct an investigation of the claim at this late date, given the transitorynature of the alleged sidewalk defect (see Matter of Sanchez v City of New York, 116 AD3d 703,704 [2014]; Matter of Bell vCity of New York, 100 AD3d 990, 991 [2012]; Matter of Valentine v City of NewYork, 72 AD3d 981, 982 [2010]).
Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding. Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.