Opinion
2012-12-5
In the Matter of Juan FARFAN, appellant, v. CITY OF NEW YORK, respondent.
McCarthy & Kelly LLP, New York, N.Y. (William P. Kelly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg of counsel; Addar Weintraub on the brief), for respondent.
McCarthy & Kelly LLP, New York, N.Y. (William P. Kelly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg of counsel; Addar Weintraub on the brief), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered December 7, 2011, which, in effect, denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in, in effect, denying the petition for leave to serve a late notice of claim and dismissing the proceeding. General Municipal Law § 50–e(7) provides, in pertinent part, “[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim.” Here, no proposed notice of claim was submitted with the petition. This was sufficient justification by itself to deny the petition ( seeGeneral Municipal Law § 50–e[7]; Matter of Estate of Curreri v. New York City Hous. Auth., 87 A.D.3d 1064, 1065, 929 N.Y.S.2d 759;Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d 920, 922, 829 N.Y.S.2d 578;Matter of Scott v. Huntington Union Free School Dist., 29 A.D.3d 1010, 1010, 816 N.Y.S.2d 165). In any event, the petitioner proffered no excuse for his failure to serve a timely notice of claim ( see Matter of Estate of Curreri v. New York City Hous. Auth., 87 A.D.3d at 1065, 929 N.Y.S.2d 759;Matter of Grant v. Nassau County Indus. Dev. Agency, 60 A.D.3d 946, 947, 875 N.Y.S.2d 556;Matter of Gillum v. County of Nassau, 284 A.D.2d 533, 726 N.Y.S.2d 458). Moreover, although a police accident report was filed regarding the subject accident, the police accident report did not of itself provide actual knowledge to the City of the essential facts constituting the claim ( see Hardayal v. City of New York, 281 A.D.2d 593, 722 N.Y.S.2d 176;Matter of Dominguez v. City of New York, 272 A.D.2d 326, 327, 714 N.Y.S.2d 679;Matter of Vitali v. City of New York, 205 A.D.2d 636, 613 N.Y.S.2d 270;Matter of Dube v. City of New York, 158 A.D.2d 457, 458, 551 N.Y.S.2d 50;Caselli v. City of New York, 105 A.D.2d 251, 255, 483 N.Y.S.2d 401). Finally, the petitioner failed to establish that the City will not be substantially prejudiced in maintaining its defense on the merits as a result of the more than five-month delay between the date of the petitioner's accident and the commencement of this proceeding for leave to serve a late notice of claim ( see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 153, 851 N.Y.S.2d 218;Matter of Yearusskaya v. New York City Tr. Auth., 279 A.D.2d 583, 719 N.Y.S.2d 282).