Summary
In Alexander we rejected the excuse that the petitioner was awaiting an accident report as liability was not based on the report.
Summary of this case from Townson v. N.Y.C. Health & Hosps. Corp.Opinion
2589N.
Decided December 23, 2003.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 26, 2002, denying petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.
Sanford F. Young for Petitioner-Appellant.
Dona B. Morris for Respondents-Respondents.
Before: Nardelli, J.P., Saxe, Rosenberger, Williams, Friedman, JJ.
Petitioner failed to demonstrate reasonable excuse for the delay in filing a timely notice of claim, failed to establish that respondents had notice of the facts constituting his claim within 90 days or reasonable time thereafter, and failed to show that respondents will not be substantially prejudiced in their ability to investigate this matter and defend the claim on the merits ( Matter of Dubowy v. City of New York, 305 A.D.2d 320). His excuse for the delay — that he was awaiting an accident report — was unreasonable, inasmuch as he had all the information necessary to file a timely notice. Contrary to petitioner's contention, the facts upon which liability is predicated were not discernible from the workers' compensation report allegedly filed with the City by petitioner's employer ( see Matter of McLoughlin v. City of New York, 178 A.D.2d 193, 194). Moreover, substantial passage of time since February 2001 has prejudiced respondents' ability to investigate the alleged defects in the ladder or to collect testimony from witnesses whose memories are fresh.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.