Opinion
2013-12-3
Gloria BLAZE, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Respondent.
Ballon Stoll Bader & Nadler, P.C., New York (Marshall B. Bellovin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondent.
Ballon Stoll Bader & Nadler, P.C., New York (Marshall B. Bellovin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondent.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered March 11, 2013, which denied plaintiff's motion to file a late notice of claim, unanimously affirmed, without costs.
The court properly denied plaintiff's motion to file a late notice of claim, where plaintiff offered no excuse for her failure to file a timely notice of claim; failed to demonstrate that defendant acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter; and failed in her burden to demonstrate that defendant would not be substantially prejudiced by the delay ( see Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 915 N.Y.S.2d 562 [1st Dept.2011]; Matter of Strauss v. New York City Tr. Auth., 195 A.D.2d 322, 600 N.Y.S.2d 32 [1st Dept.1993] ). “[K]nowledge of the facts underlying an occurrence does not constitute knowledge of the claim. What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim” (Liberty Group Holdings v. City of New York, 5 A.D.3d 148, 149, 773 N.Y.S.2d 36 [1st Dept.2004], lv. denied3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 [2004] [internal quotation marks omitted], quoting Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859 [1990], affd.78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406 [1991] ).
In any event, plaintiff's claim accrued, at the latest, in April 2011, when she asserts that she was “constructively forced into early retirement,” making her motion to file a late notice of claim well beyond the limitation period of, at most, 1 year and 90 days (Education Law 3813[3], [2–b]; General Municipal Law § 50–i). Thus, the court was without authority to grant plaintiff the requested relief ( seeEducation Law § 3813[2], [2–a]; General Municipal Law § 50–i; Consolidated Constr. Group, LLC v. Bethpage Union Free School Dist., 39 A.D.3d 792, 794–795, 835 N.Y.S.2d 630 [2d Dept.2007], lv. dismissed 9 N.Y.3d 980, 848 N.Y.S.2d 16, 878 N.E.2d 600 [2007] ). ANDRIAS, J.P., ACOSTA, MOSKOWITZ, RICHTER, MANZANET–DANIELS, JJ., concur.