Opinion
2003-07236.
Decided May 24, 2004.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Kings County (Hubsher, J.), dated July 1, 2003, which granted the petition.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Mark J. Cipolla, Cynthia A. Neugebauer, and Meredith Drucker of counsel), for appellant.
Jeffery H. Schwartz, New York, N.Y., for respondents.
Before: NANCY E. SMITH, J.P., SONDRA MILLER, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
On February 6, 2002, the petitioners allegedly sustained gunshot injuries on the exterior grounds of a housing development owned and operated by the appellant. On April 2, 2003, the petitioners commenced this proceeding for leave to serve a late notice of claim. The Supreme Court granted the petition. We reverse.
In determining whether leave to serve a late notice of claim should be granted, a court should consider, as key factors, whether the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits ( see Matter of Pruden v. New York City Bd. of Educ., 235 A.D.2d 426; Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605).
Contrary to the petitioners' contentions, they did not establish a reasonable excuse for their failure to timely serve a notice of claim ( see Matter of Frick v. Incorporated Vil. of Hempstead, 192 A.D.2d 605). Indeed, they failed to offer any persuasive proof of an ongoing medical incapacity or any other reason to justify the 11-month delay in seeking leave ( see Matter of Roman v. City of New York, 254 A.D.2d 292; Dickerson v. New York City Hous. Auth., 245 A.D.2d 371). Moreover, they failed to demonstrate that the appellant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and that the appellant would not be prejudiced by the delay ( see Matter of Price v. Board of Educ. of City of Yonkers, 300 A.D.2d 310; Matter of Di Fusco v. Mahopac School Dist. of Town of Carmel, N.Y., 299 A.D.2d 544; Harris v. City of New York, 297 A.D.2d 473, 474; see also Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866).
Accordingly, leave to serve a late notice of claim should have been denied.
SMITH, J.P., S. MILLER, CRANE and RIVERA, JJ., concur.