Opinion
2014-01-30
John McGINNESS, et al., Petitioners–Appellants, v. CITY OF NEW YORK, et al., Respondents–Respondents.
Law Offices of Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Law Offices of Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered May 30, 2012, which denied the petition for leave to file a late notice of claim, unanimously affirmed, without costs.
Petitioners failed to explain their delay in filing the notice of claim ( seeGeneral Municipal Law § 50–e[1][a]; [5]; Matter of Casale v. City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 [1st Dept.2012]; Matter of Grant v Nassau County Indus. Dev. Agency, 60 A.D.3d 946, 875 N.Y.S.2d 556 [2d Dept.2009] ). While they claim that the injured petitioner's incapacity prevented him from obtaining counsel from the date of the incident, June 24, 2011, until his surgery in September 2011, they do not explain the approximately two-month delay in filing the notice of claim after they obtained counsel in October 2011, or the delay until February 2012 in seeking leave to file an untimely notice.
Petitioners also failed to show that respondents acquired actual knowledge of the essential facts constituting their claim (General Municipal Law § 50–e [5] ). While, as petitioners contend, respondents' “internal reports and records contain[ed] the exact details of the incident,” there are no factual allegations in the contemporaneous written statements of the injured petitioner's coworkers or, indeed, in petitioner's own written statement that would constitute a claim of negligence on respondents' part ( see Matter of Casale, 95 A.D.3d at 745, 945 N.Y.S.2d 92). Thus, contrary to petitioners' contention, respondents' records do not rebut the inference of prejudice that arises from petitioners' eight-month delay in serving the notice of claim ( see id.).
We note, moreover, that petitioners' cause of action is without merit ( see Caldwell v. 302 Convent Ave. Hous. Dev. Fund Corp., 272 A.D.2d 112, 707 N.Y.S.2d 423 [1st Dept.2000] ). Petitioners failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault ( see Bonner v. City of New York, 73 N.Y.2d 930, 539 N.Y.S.2d 728, 536 N.E.2d 1147 [1989]; Pascucci v. Board of Educ. of City of N.Y., 305 A.D.2d 103, 758 N.Y.S.2d 54 [1st Dept. 2003] ). GONZALEZ, P.J., FRIEDMAN, RENWICK, FREEDMAN, RICHTER, JJ., concur.