& KENNY, PLLC, SYRACUSE (MICHAEL P. KENNY OF COUNSEL),
LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHRISTOPHER M.
MILITELLO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND
from an order of the Supreme Court, Oswego County (Norman W.
Seiter, Jr., J.), entered February 24, 2016. The order, inter
alia, denied the application of claimant for leave to serve a
late notice of claim on respondent.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Claimant appeals from an order that, inter alia, denied his
application for leave to serve a late notice of claim against
respondent pursuant to General Municipal Law § 50-e (5)
for violations of the Labor Law. We reject claimant's
contention that Supreme Court erred in denying the
determining whether to grant such leave, the court must
consider, inter alia, whether the claimant has shown a
reasonable excuse for the delay, whether the municipality had
actual knowledge of the facts surrounding the claim within 90
days of its accrual, and whether the delay would cause
substantial prejudice to the municipality" (Matter
of Friend v Town of W. Seneca, 71 A.D.3d 1406, 1407;
see generally General Municipal Law § 50-e ;
Education Law § 3813 [2-a]). "Absent a clear abuse
of the court's broad discretion, the determination of an
application for leave to serve a late notice of claim will
not be disturbed" (Dalton v Akron Cent. Schs.,
107 A.D.3d 1517, 1518, affd 22 N.Y.3d 1000');">22 N.Y.3d 1000 [internal
quotation marks omitted]).
claimant failed to establish that respondent had actual
knowledge of the essential facts constituting the claim
within the requisite time period (see Folmar v
Lewiston-Porter Cent. Sch. Dist., 85 A.D.3d 1644, 1645),
which is a factor "that should be accorded great weight
in determining whether leave to serve a late notice of claim
should be granted" (Santana v Western Regional
Off-Track Betting Corp., 2 A.D.3d 1304, 1304, lv
denied 2 N.Y.3d 704; see Williams v Nassau County
Med. Ctr., 6 N.Y.3d 531, 535; Matter of Turlington v
Brockport Cent. Sch. Dist., 143 A.D.3d 1247, 1248).
Contrary to claimant's contention, the accident report
prepared by claimant's employer and purportedly received
by the construction manager for the school project on which
claimant was injured did not impute to respondent the
requisite actual knowledge inasmuch as the evidence in the
record failed to establish that the construction manager was
an agent of respondent (see Matter of Casale v City of
New York, 95 A.D.3d 744, 745; see also Mehra v City
of New York, 112 A.D.3d 417, 418). In any event, even
assuming, arguendo, that the construction manager was
respondent's agent and timely received the accident
report, we conclude that the report was insufficient to
provide respondent with actual knowledge of the essential
facts constituting the claim inasmuch as it described the
underlying occurrence and claimant's injuries in general
terms and made no connection between the accident and any
liability on the part of respondent (see Matter of Jin
Gak Kim v Dormitory Auth. of the State of N.Y., 140
A.D.3d 1459, 1460-1461; Matter of Fernandez v City of New
York, 131 A.D.3d 532, 533; Mehra, 112 A.D.3d at
418; Matter of Kliment v City of Syracuse, 294
A.D.2d 944, 945). "Respondent's knowledge of the
accident and the injury, without more, does not constitute
actual knowledge of the essential facts constituting the
claim" (Folmar, 85 A.D.3d at 1645 [internal
quotation marks omitted]). Moreover, "[w]hile the record
reveals that certain of respondent's employees had been
generally alerted [at a project meeting] that a [worker]
injured himself on the job, no details or specifics of the
accident or the extent of injuries were given or known such
that it could be fairly stated that respondent acquired
actual knowledge of the essential facts constituting the
claim'... within a reasonable time of the accident"
(Matter of Smith v Otselic Val. Cent. Sch. Dist.,
302 A.D.2d 665, 666).
respect to claimant's excuse for the delay, we conclude
that, even if he was "initially unaware of the severity
of his injuries, he did not seek leave to serve a late notice
of claim until [nearly seven] months after he underwent
surgery, and he failed to offer a reasonable excuse for the
postsurgery delay" (Friend, 71 A.D.3d at 1407;
see Mehra, 112 A.D.3d at 418). Claimant's
further excuse that his ability to ascertain that respondent
could be liable was impaired by respondent's allegedly
inadequate initial responses to his Freedom of Information
Law (FOIL) requests is unavailing here, inasmuch as claimant
failed to explain how any FOIL responses were necessary to
discover that respondent, the known owner of the school, was
potentially liable for violations of the Labor Law (cf.
Matter of Rivera v City of New York, 127 A.D.3d 445,
445-446; see generally Ross v Curtis-Palmer Hydro-Elec.
Co., 81 N.Y.2d 494, 499-503).
further conclude that claimant failed to meet his initial
burden of showing that the late notice will not substantially
prejudice respondent's ability to investigate and defend
against the claim (see Matter of Newcomb v Middle Country
Cent. Sch. Dist., 28 N.Y.3d 455, 466; Matter of
D'Agostino v City of New York, 146 A.D.3d 880, 882).
Thus, under the circumstances of this case, we cannot
conclude that there was a clear abuse of the court's
broad discretion in denying claimant's application.
we reject claimant's contention that respondent should be
equitably estopped from relying on General Municipal Law
§ 50-e based upon its allegedly inadequate initial FOIL
responses. Here, "there is no evidence that [respondent]
engaged in any improper conduct dissuading [claimant] from
serving a timely notice of claim" (Putrelo Constr.
Co. v Town of Marcy, 105 A.D.3d 1406, 1408; see
Glasheen v Valera, 116 A.D.3d 505, 505-506) and, in any
event, claimant's purported reliance upon the FOIL
responses in delaying the notice of claim was not justifiable
under the circumstances (see Mohl v Town of