Opinion
675N, 261044/14.
03-31-2016
In re Alexis VIRELLA, Petitioner–Appellant, v. CITY OF NEW YORK, et al., Respondents–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.
MAZZARELLI, J.P., RENWICK, MOSKOWITZ, KAPNICK, KAHN, JJ.
Opinion Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered March 31, 2015, which, to the extent appealed from as limited by the briefs, denied petitioner's motion for leave to serve a late notice of claim nunc pro tunc upon respondent City of New York, unanimously affirmed, without costs.
The court providently exercised its discretion in denying petitioner leave to serve a late notice of claim. Petitioner, who alleges that he was assaulted by a fellow inmate while in the custody of the Department of Corrections (DOC), failed to meet any of the criteria necessary to warrant the exercise of this Court's discretion (see Caminero v. New York City Health & Hosps. Corp. [Bronx Mun. Hosp. Ctr.], 21 A.D.3d 330, 332, 800 N.Y.S.2d 173 [1st Dept.2005] ; General Municipal Law § 50–e[5] ).
While petitioner's absence of an acceptable excuse would not, standing alone, necessarily be fatal to his application, he also failed to establish that respondent had actual notice of the essential facts of the claim within 90 days after it arose, or a reasonable time thereafter, and he failed to demonstrate that respondent was not prejudiced by the delay. That the DOC may have filed an injury report regarding the assault on petitioner does not constitute notice of an intention to file a civil suit based on claims of negligence and intentional torts (see Zapata v. New York City Hous. Auth., 115 A.D.3d 606, 982 N.Y.S.2d 130 [1st Dept.2014] ; Matter of Rivera v. New York City Hous. Auth., 25 A.D.3d 450, 807 N.Y.S.2d 373 [1st Dept.2006] ). “The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed” (Matter of Sica v. Board of Educ. Of City of N.Y., 226 A.D.2d 542, 543, 640 N.Y.S.2d 610 [2d Dept.1996] ). Accordingly, respondent was prejudiced, since it could not conduct a prompt investigation despite the fact that a little over five months had passed since the occurrence (see Matter of Vargas v. New York City Hous. Auth., 232 A.D.2d 263, 648 N.Y.S.2d 546 [1st Dept.1996], lv. denied 89 N.Y.2d 817, 659 N.Y.S.2d 858, 681 N.E.2d 1305 [1997] ).