Opinion
2001-05165
Submitted February 20, 2002.
March 25, 2002.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated February 14, 2001, which denied the petition.
Juntikka Associates, LLP, New York, N.Y. (Gail Lin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Linda H. Young of counsel; John P. Hewson on the brief), for respondents.
Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER, and SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed, with costs.
The Supreme Court, in its discretion, may grant an application for leave to serve a late notice of claim (see General Municipal Law § 50-e). The key factors which the court must consider are whether the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality or agency acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense (see General Municipal Law § 50-e; Matter of Guiliano v. Town of Oyster Bay, 244 A.D.2d 408; Carbone v. Town of Brookhaven, 176 A.D.2d 778).
The delay in serving the notice of claim in this case was the result of law office failure, which is not an acceptable excuse for the failure to timely comply with the provisions of General Municipal Law § 50-e (see Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746). Furthermore, the petitioner does not allege that the respondents possessed actual knowledge of the facts constituting the claim within the 90-day period after the claim arose (see Benzinger v. Town of Brookhaven, 288 A.D.2d 412). Under the circumstances of this case, the respondents would be prejudiced in their defense by the approximately six-month delay between the time the claim arose and the time the petitioner commenced the proceeding for leave to serve a late notice of claim (see Gillum v. Counity of Nassau, 284 A.D.2d 533, 534; Yearusskaya v. New York City Tr. Auth., 279 A.D.2d 583).
Accordingly, the Supreme Court providently exercised its discretion in denying the petitioner's application.
RITTER, J.P., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., concur.