Opinion
2013-10-1
In re Michael BRENNAN, et al., Petitioners–Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Respondents–Respondents.
Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellants. Fabiani Cohen & Hall, LLP, New York (Anthony Lugara of counsel), for respondents.
Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellants. Fabiani Cohen & Hall, LLP, New York (Anthony Lugara of counsel), for respondents.
ANDRIAS, J.P., SWEENY, ACOSTA, SAXE, CLARK, JJ.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered January 27, 2012, denying petitioners' motion to file a late notice of claim, unanimously affirmed, without costs.
Petitioners' stated ignorance of the requirements of General Municipal Law § 50–e is not a reasonable excuse for failure to timely file a notice of claim ( see Rodriguez v. New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 A.D.3d 538, 911 N.Y.S.2d 347 [1st Dept.2010],lv. denied17 N.Y.3d 718, 2011 WL 5839654 [2011] ). Petitioners also failed to demonstrate that the delay was due to petitioner Michael Brennan's injuries since he returned to work well before the motion to serve a late notice of claim was filed.
Although the absence of a reasonable excuse does not compel denial of the motion ( see Renelique v. New York City Hous. Auth., 72 A.D.3d 595, 899 N.Y.S.2d 232 [1st Dept.2010] ), petitioners also failed to show that respondents or their insurance carrier had actual knowledge of the claim in that there was no evidence that the supervisor's report or witness statement were provided to respondents. Respondents' search of their files failed to disclose these documents or the presence of an inspector employed by respondents on the scene at the time of the accident. The documents provided by petitioners' concerning Michael Brennan's workers' compensation claim are insufficient since they do not state any facts suggesting that his injuries were due to respondents' negligenceor that they are vicariously liable for the conduct of petitioner's employer.
Moreover, with respect to prejudice to respondents, it is uncontested that the conditions at the scene of the accident have changed ( see e.g. Matter of DelValle v. City of New York, 242 A.D.2d 382, 661 N.Y.S.2d 998 [2d Dept.1997] ).