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9732-Geraldine Mcclatchie v. the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 9, 2013

9732-GERALDINE MCCLATCHIE,
PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK,
DEFENDANT-RESPONDENT.

McClatchie v City of New York

Decided on April 9, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

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 (see General Municipal Law § 50-e[5]; see generally Matter of Strauss v New York City Tr. Auth., 195 AD2d 322, 322 [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 AD2d 473, 474 [1st Dept 2002], lv denied 99 NY2d 503 [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 NY2d 628, 630 [1983]; Ordillas v MTA N.Y. City Tr., 50 AD3d 391, 392 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 9, 2013

CLERK

20130409

© 1992-2013 VersusLaw Inc.



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