Opinion
376 CA 20-01426
07-09-2021
In the Matter of Antonio BORRELLI, Claimant-Respondent, v. COUNTY OF ERIE and Erie County Department of Public Works Buildings and Grounds Division, Respondents-Appellants.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (ERIN E. MOLISANI OF COUNSEL), FOR RESPONDENTS-APPELLANTS. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR CLAIMANT-RESPONDENT.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (ERIN E. MOLISANI OF COUNSEL), FOR RESPONDENTS-APPELLANTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR CLAIMANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is denied.
Memorandum: Respondents appeal from an order granting claimant's application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). On February 13, 2019, claimant allegedly sustained injuries when he slipped on ice on the first step of the exterior stairs leading into the Erie County Court building. We conclude that claimant did not meet his burden on his application, and that Supreme Court abused its discretion in granting it. We therefore reverse the order and deny the application.
In determining whether to grant a party's application for leave to serve a late notice of claim, " ‘the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality’ " ( Tate v. State Univ. Constr. Fund , 151 A.D.3d 1865, 1865, 58 N.Y.S.3d 783 [4th Dept. 2017] ; see General Municipal Law § 50-e [5] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 461, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ). With respect to reasonable excuse, claimant offered only the explanation that he was unaware of the notice of claim requirement. We have previously held that ignorance of the law does not constitute a reasonable excuse (see Matter of Ficek v. Akron Cent. Sch. Dist. , 144 A.D.3d 1601, 1602, 41 N.Y.S.3d 616 [4th Dept. 2016] ; Brown v. City of Buffalo , 100 A.D.3d 1439, 1440, 954 N.Y.S.2d 303 [4th Dept. 2012] ; Le Mieux v. Alden High School , 1 A.D.3d 995, 996, 767 N.Y.S.2d 348 [4th Dept. 2003] ).
Claimant's unsubstantiated assertion that he informed guards on duty at the courthouse of his fall and injuries fails to establish that respondents received actual knowledge constituting the essential facts of the claim within 90 days (see General Municipal Law § 50-e [1] [a] ; [5]; Le Mieux , 1 A.D.3d at 996, 767 N.Y.S.2d 348 ; Matter of Riordan v. East Rochester Schools , 291 A.D.2d 922, 923, 737 N.Y.S.2d 202 [4th Dept. 2002], lv denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605 [2002] ; Matter of Morrison v. New York City Health & Hosps. Corp. , 244 A.D.2d 487, 488, 664 N.Y.S.2d 342 [2d Dept. 1997] ; Matter of Hurley v. Avon Cent. School Dist. , 187 A.D.2d 982, 983, 591 N.Y.S.2d 643 [4th Dept. 1992] ; see generally Washington v. City of New York , 72 N.Y.2d 881, 883, 532 N.Y.S.2d 361, 528 N.E.2d 513 [1988] ). We accord great weight to claimant's failure to meet his burden with respect to that factor (see Matter of Szymkowiak v. New York Power Auth. , 162 A.D.3d 1652, 1654, 80 N.Y.S.3d 565 [4th Dept. 2018] ).
The fact that there may be preserved surveillance footage of the accident could work in claimant's favor (see Matter of Sproule v. New York Convention Ctr. Operating Corp. , 180 A.D.3d 496, 497, 120 N.Y.S.3d 5 [1st Dept. 2020] ; see also Matter of John P. v. Plainedge Union Free Sch. Dist. , 165 A.D.3d 1263, 1264, 87 N.Y.S.3d 593 [2d Dept. 2018] ), but claimant has failed to establish that the footage still exists. We therefore cannot conclude that claimant met his burden of "show[ing] that the late notice will not substantially prejudice" respondents ( Newcomb , 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Zarrello v. City of New York , 61 N.Y.2d 628, 630, 471 N.Y.S.2d 846, 459 N.E.2d 1284 [1983] ; Matter of Casale v. City of New York , 95 A.D.3d 744, 745, 945 N.Y.S.2d 92 [1st Dept. 2012] ). Even assuming, arguendo, that the surveillance footage exists, we conclude that the absence of the first two factors compels the denial of claimant's application.