Opinion
2012-11-28
In the Matter of Chana MINKOWICZ, respondent, v. CITY OF NEW YORK, appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Peter A. Mancuso of counsel), for appellant. The Berkman Law Office, LLC, Brooklyn, N.Y. (Aaron Solomon of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Peter A. Mancuso of counsel), for appellant. The Berkman Law Office, LLC, Brooklyn, N.Y. (Aaron Solomon of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated March 18, 2011, which granted the petition.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim. The petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the approximatelyone-year delay in filing the petition. The petitioner's ignorance of the requirement to serve the notice of claim within 90 days after the claim arose did not constitute a reasonable excuse ( see Meyer v. County of Suffolk, 90 A.D.3d 720, 721, 934 N.Y.S.2d 235;Matter of Bush v. City of New York, 76 A.D.3d 628, 906 N.Y.S.2d 597;Matter of Dancy v. Poughkeepsie Hous. Auth., 220 A.D.2d 413, 631 N.Y.S.2d 879). Furthermore, the petitioner's assertions that she did not immediately appreciate the nature and severity of her injury and that she was caring for her seriously ill infant son were unavailing without supporting medical evidence ( see Matter of Werner v. Nyack Union Free School Dist., 76 A.D.3d 1026, 908 N.Y.S.2d 103;Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 151, 851 N.Y.S.2d 218;Matter of Ridley v. New York City Tran. Auth., 38 A.D.2d 973, 331 N.Y.S.2d 836).
In addition, the City did not acquire actual knowledge of the essential facts constituting the claim within the 90–day statutory period or within a reasonable time thereafter ( seeGeneral Municipal Law § 50–e[5]; Matter of Wright v. City of New York, 99 A.D.3d 717, 951 N.Y.S.2d 750;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 147, 851 N.Y.S.2d 218;Casias v. City of New York, 39 A.D.3d 681, 682, 833 N.Y.S.2d 662;cf. Matter of Battle v. City of New York, 261 A.D.2d 614, 615, 690 N.Y.S.2d 698). Moreover, the petitioner failed to establish that the delay in seeking leave to serve a late notice of claim would not substantially prejudice the City in maintaining its defense on the merits, given the passage of time and the transient nature of the pothole in the street over which the petitioner allegedly tripped and fell ( see Zarrello v. City of New York, 61 N.Y.2d 628, 630, 471 N.Y.S.2d 846, 459 N.E.2d 1284;Matter of Wright v. City of New York, 99 A.D.3d 717, 951 N.Y.S.2d 750;Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 946 N.Y.S.2d 220;Matter of Khalid v. City of New York, 91 A.D.3d 779, 780, 937 N.Y.S.2d 124;Matter of Aguilar v. Town of Islip, 294 A.D.2d 358, 359, 741 N.Y.S.2d 732;Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401).
The petitioner's remaining contentions pertain to matter dehors the record and have not been considered in the determination of the appeal ( see Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d 704, 706, 915 N.Y.S.2d 296).