Opinion
03-22-2016
In re Wayne BAUM, Petitioner–Appellant, v. The CITY OF NEW YORK, Respondent–Respondent.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondent.
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered November 5, 2014, which denied petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.
Although the absence of a reasonable excuse does not compel denial of an application for leave to file a late notice of claim (see Matter of Brennan v. Metropolitan Transp. Auth., 110 A.D.3d 437, 972 N.Y.S.2d 238 [1st Dept.2013] ), petitioner has failed to demonstrate that respondent had actual knowledge of the claim within the statutory 90–day service period or a reasonable time thereafter (see Gonzalez v. City of New York, 92 A.D.3d 619, 939 N.Y.S.2d 402 [1st Dept.2012] ; Matter of Grande v. City of New York, 48 A.D.3d 565, 853 N.Y.S.2d 353 [2d Dept.2008] ). Indeed, petitioner failed to submit the report he claims was generated by his supervisors at the Department of Buildings that sets forth the facts upon which respondent's liability is predicated, and there is no evidence that such a report was ever prepared (see Matter of Barzaga v. New York City Hous. Auth., 204 A.D.2d 163, 612 N.Y.S.2d 122 [1st Dept.1994] ). Petitioner also submitted no evidence that he made an attempt to procure the report he believes was prepared by his supervisors nor did he attempt to locate his supervisors even though the Department of Buildings allegedly had procedures in place which required them to notify respondent of the incident (see Tavarez v. City of New York, 26 A.D.3d 297, 298, 810 N.Y.S.2d 65 [1st Dept.2006] ).
Furthermore, petitioner's unsupported assertion that the condition that caused his accident has remained unchanged since his fall is insufficient to demonstrate the lack of any prejudice to respondent from the more than one year delay (see Matter of Santiago v. New York City Tr. Auth., 85 A.D.3d 628, 925 N.Y.S.2d 500 [1st Dept.2011] ).
SWEENY, J.P., RENWICK, MOSKOWITZ, GISCHE, JJ., concur.