Opinion
2002-02510
Submitted February 10, 2003.
March 3, 2003.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated December 14, 2001, which denied the petition.
Sol Mermelstein, Brooklyn, N.Y. (S. Herman Klarsfeld and Jeffrey R. Berke of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah Weiss of counsel), for respondent City of New York.
Wallace D. Gossett (Steve S. Efron, New York, N.Y., of counsel), for respondent New York City Transit Authority.
Before: DAVID S. RITTER, J.P., LEO F. McGINITY, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
It is well settled that the determination as to whether to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court (see General Municipal Law § 50-e). The key factors which the court must consider are whether the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense (see Matter of Valestil v. City of New York, 295 A.D.2d 619, lv denied 98 N.Y.2d 615; Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746). The petitioner's excuse for failing to serve a timely notice of claim, that he was unaware of the severity of his right shoulder injury until approximately six months after the accident, is unacceptable without supporting medical evidence explaining why the injury took so long to become apparent and be diagnosed (see Matter of Eaddy v. County of Nassau, 282 A.D.2d 675; Lefkowitz v. City of New York, 272 A.D.2d 56). Nor was admissible medical support proffered to verify that another six-month delay was due to mental incapacity (see Giordano v. New York City Hous. Auth., 128 A.D.2d 671; cf. Barnes v. County of Onondaga, 65 N.Y.2d 664).
The petitioner's contention that the respondents had actual knowledge of the facts essential to the claim within the 90-day period after the claim arose is unsupported by the record (see Matter of Valestil v. City of New York, supra). Under the circumstances of this case, the respondents would be prejudiced in their defense by the delay between the time the claim arose and the time the petitioner commenced the proceeding for leave to serve a late notice of claim (see Matter of Kittredge v. New York City Hous. Auth., supra; Matter of Guiliano v. Town of Oyster Bay, 244 A.D.2d 408).
Accordingly, the Supreme Court providently exercised its discretion in denying the petitioner's application.
RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.