Submitted Date: May 2, 2017
Krentsel & Guzman LLP, New York, NY (Steven E. Krentsel
and Julie T. Mark of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng
and Alexander M. Anolik of counsel), for respondents.
C. BALKIN, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
proceeding pursuant to General Municipal Law § 50-e(5),
in effect, for leave to serve a late notice of claim, the
petitioner appeals from an order of the Supreme Court,
Richmond County (Aliotta, J.), dated November 4, 2015, which
denied the petition and, in effect, dismissed the proceeding.
that the order is affirmed, with costs.
to General Municipal Law § 50-e(5), a court considering
a petition for leave to serve a late notice of claim upon a
municipal corporation must consider whether the public
corporation acquired actual knowledge of the essential facts
constituting the claim within 90 days after it arose or
within a reasonable time thereafter (see General
Municipal Law § 50-e; Matter of Whitaker v New
York City Bd. of Educ, 71 A.D.3d 776; Matter of
Leeds v Port Wash. Union Free School Dist., 55 A.D.3d
734; Matter of Felice v Eastport/South Manor Cent. School
Dist., 50 A.D.3d 138, 147). The court shall also
consider all other relevant facts and circumstances,
including whether the petitioner has demonstrated a
reasonable excuse for the failure to serve a timely notice of
claim and whether the delay would substantially prejudice the
municipality in maintaining its defense on the merits
(see Matter of Valila v Town of Hempstead, 107
A.D.3d 813, 814; Matter of Whitaker v New York City Bd of
Educ, 71 A.D.3d at 777; Matter of Mounsey v City of
New York, 68 A.D.3d 998).
petitioner, an employee of the New York City Department of
Sanitation (hereinafter the DSNY), did not demonstrate a
reasonable excuse for his failure to serve a timely notice of
claim upon the DSNY and the respondent City of New York
(hereinafter together the respondents). The fact that the
petitioner allegedly was unaware of the requirements of
General Municipal Law § 50-e(5) or that the DSNY is a
public corporation are not reasonable excuses for the failure
to serve a timely notice of claim (see Matter of Bhargava
v City of New York, 130 A.D.3d 819; Matter of Flores
v County of Nassau, 8 A.D.3d 377, 378; Figueroa v
City of New York, 92 A.D.2d 908, 909).
line of duty injury (hereinafter LODI) report, the line of
duty injury/illness medical report, and the LODI unusual
occurrence report prepared on the date of the accident were
insufficient to provide the respondents with actual knowledge
of the essential facts underlying the petitioner's claim.
These reports merely indicated that the petitioner was
injured when his left foot got stuck in the grate of the step
as he was descending a spreader, and made no reference to the
claims listed in the proposed notice of claim, inter alia,
that the "step" grate was defective and the
respondents were negligent in their ownership, operation,
maintenance, management, inspection, and control of the
subject vehicle (see Matter of Catuosco v City of New
York, 62 A.D.3d 995; Matter of Grande v City of New
York, 48 A.D.3d 565; Doherty v City of New
York, 251 A.D.2d 368; Matter of DiBella v City of
New York, 234 A.D.2d 366; Matter of Morris v County
of Suffolk, 88 A.D.2d 956, aff'd 58 N.Y.2d
767). Furthermore, the LODI unusual occurrence report
indicated that the petitioner's supervisor inspected the
step grate and noticed that there was no damage. Under these
circumstances, there was no notice of a connection between
the injury and the alleged negligence of the respondents
(see Matter of Aliberti v City of Yonkers, 302
petitioner presented no "evidence or plausible
argument" that his delay in serving a notice of claim
did not substantially prejudice the respondents in defending
on the merits (Matter of Newcomb v Middle Country Cent.
Sch. Dist., 28 N.Y.3d 455, 466; see Matter of A.C. v
West Babylon Union Free Sch. Dist., 147 A.D.3d 1047,
1048). The assertions contained in the affirmation of the
petitioner's attorney, which was submitted in support of
the petition, that the respondents were not substantially
prejudiced by the delay in serving a notice of claim because
they were fully aware of the facts and circumstances of this
case and the petitioner's intention to commence an action
were conclusory and, without more, inadequate to satisfy the
petitioner's minimal initial burden with respect to this
factor (cf Matter of Newcomb v Middle Country Cent. Sch.
Dist., 28 N.Y.3d at 466-467).
upon consideration of the relevant factors, the Supreme Court
providently exercised its discretion in denying the petition