Opinion
2013-04-9
Geraldine McCLATCHIE, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
The Feinsilver Law Group, P.C., Brooklyn (H. Jonathan Rubinstein of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent.
The Feinsilver Law Group, P.C., Brooklyn (H. Jonathan Rubinstein of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 5, 2011, which denied plaintiff's application seeking leave to file a late notice of claim, and order, same court (Arthur Engoron, J.), entered January 9, 2012, which granted defendant's motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.
The court properly exercised its discretion by denying plaintiff's application, given that plaintiff failed to offer a reasonable excuse for the delay, does not contest that the City acquired no knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and failed to demonstrate that the City suffered no substantial prejudice ( seeGeneral Municipal Law § 50–e[5]; see generally Matter of Strauss v. New York City Tr. Auth., 195 A.D.2d 322, 322, 600 N.Y.S.2d 32 [1st Dept. 1993] ). Where, as here, there is no reasonable excuse for the delay and the City did not acquire actual knowledge of the essential facts within the 90–day period, or a reasonable time thereafter, “the transitory nature of the defective condition weighs against the granting of an application to file a late notice of claim” ( Harris v. City of New York, 297 A.D.2d 473, 474, 747 N.Y.S.2d 4 [1st Dept. 2002], lv. denied99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002] ). Moreover, plaintiff's 14–month delay in seeking to file a notice of claim deprived the City of a reasonable opportunity to locate witnesses ( see Zarrello v. City of New York, 61 N.Y.2d 628, 630, 471 N.Y.S.2d 846, 459 N.E.2d 1284 [1983];Ordillas v. MTA N.Y. City Tr., 50 A.D.3d 391, 392, 854 N.Y.S.2d 311 [1st Dept. 2008] ).