Summary
In Humsted, however, the plaintiff provided only her own unsubstantiated contentions regarding the contents of a police report.
Summary of this case from Banks v. MTA Bus Co.Opinion
09-28-2016
Joan HUMSTED, appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., respondents, et al., defendants.
Reingold & Tucker, Brooklyn, NY (Abraham Reingold of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Michael Pastor of counsel), for respondents.
Reingold & Tucker, Brooklyn, NY (Abraham Reingold of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Michael Pastor of counsel), for respondents.
Opinion In an action, inter alia, to recover damages for false arrest, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Ash, J.), dated March 13, 2014, which denied her motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, and (2), as limited by her brief, from so much of an order of the same court dated October 24, 2014, as denied her motion, denominated as one for leave to renew or reargue, but which was, in actuality, one for leave to reargue her prior motion.
ORDERED that the appeal from the order dated October 24, 2014, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated March 13, 2014, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The plaintiff's appeal, as limited by her brief, from the order dated October 24, 2014, must be dismissed. The plaintiff's underlying motion, denominated as one for leave to renew and reargue, was not based on new facts (see CPLR 2221[e] ). Thus, the motion was, in actuality, one for leave to reargue, the denial of which is not appealable (see Matter of New S. Ins. Co. v. Rosado, 125 A.D.3d 867, 1 N.Y.S.3d 836 ; Basile v. Wiggs, 117 A.D.3d 766, 984 N.Y.S.2d 882 ).
The Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served. The plaintiff failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The plaintiff's ignorance of the notice of claim requirement is not a reasonable excuse (see Matter of Padgett v. City of New York, 78 A.D.3d 949, 950, 912 N.Y.S.2d 75 ; Matter of Werner v. Nyack Union Free School Dist., 76 A.D.3d 1026, 1026, 908 N.Y.S.2d 103 ). The plaintiff also failed to offer any proof to show that either the defendant New York City Health and Hospitals Corporation or the defendant City of New York (hereinafter together the respondents) acquired actual knowledge of the essential facts constituting the claim within the 90–day statutory period or within a reasonable time thereafter (see Matter of Cali v. City of Poughkeepsie, 84 A.D.3d 1229, 1229–1230, 923 N.Y.S.2d 880 ; Hebbard v. Carpenter, 37 A.D.3d 538, 540, 830 N.Y.S.2d 270 ; Matter of Carpenter v. City of New York, 30 A.D.3d 594, 595, 817 N.Y.S.2d 155 ; Matter of Shapiro v. County of Nassau, 208 A.D.2d 545, 545, 616 N.Y.S.2d 786 ). The plaintiff provided only her own unsubstantiated contentions and those of her attorney regarding the contents of a police accident report and her medical records (see Washington v. City of New York, 72 N.Y.2d 881, 883, 532 N.Y.S.2d 361, 528 N.E.2d 513 ; State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 718, 828 N.Y.S.2d 416 ; Matter of Martinez v. New York City Hous. Auth., 250 A.D.2d 686, 687, 672 N.Y.S.2d 898 ). The plaintiff also failed to establish that the delay in serving her notices of claim would not substantially prejudice the respondents in maintaining their defenses on the merits with respect to the claims (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Bush v. City of New York, 76 A.D.3d 628, 629, 906 N.Y.S.2d 597 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served (see Matter of Shapiro v. County of Nassau, 208 A.D.2d at 545, 616 N.Y.S.2d 786 ).
CHAMBERS, J.P., DICKERSON, DUFFY and LaSALLE, JJ., concur.