Opinion
2012-01-17
In the Matter of Rizwan KHALID, respondent, v. CITY OF NEW YORK, appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Simcha Baruch Rivkin of counsel), for appellant. Segan, Nemerov & Singer, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Simcha Baruch Rivkin of counsel), for appellant. Segan, Nemerov & Singer, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated November 10, 2010, which granted the petition.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, a court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally or physically incapacitated, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits ( see General Municipal Law § 50–e [5]; Matter of Keyes v. City of New York, 89 A.D.3d 1086, 933 N.Y.S.2d 607; Matter of Nurse v. City of New York, 87 A.D.3d 543, 544, 928 N.Y.S.2d 65; Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d 704, 704–705, 915 N.Y.S.2d 296).
The petitioner did not demonstrate a reasonable excuse for failing to serve a timely notice of claim. While the petitioner may have been physically incapacitated during the first three months after the accident, he failed to demonstrate a reasonable excuse for the additional five-month delay after counsel was retained before properly filing the present petition for leave to serve a late notice of claim ( see Matter of Hill v. New York City Tr. Auth., 68 A.D.3d 866, 867, 890 N.Y.S.2d 627; Matter of Smith v. Baldwin Union Free School Dist., 63 A.D.3d 1078, 1079, 881 N.Y.S.2d 488; Matter of Baglivi v. Town of Southold, 301 A.D.2d 597, 598, 754 N.Y.S.2d 43).
Furthermore, the City of New York did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. The curb defect indicated on a map filed with the New York City Department of Transportation by the Big Apple Pothole and Sidewalk Protection Corporation six years before the accident did not suffice to give the City actual knowledge of the essential facts constituting the petitioner's claim ( see Matter of Konstantinides v. City of New York, 278 A.D.2d 235, 236, 717 N.Y.S.2d 301; Matter of Rios v. City of New York, 180 A.D.2d 801, 802, 580 N.Y.S.2d 438). Notably, the City did not have actual timely knowledge of the petitioner's accident, his injuries, or the facts underlying his theory of liability against the City ( see Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 889, 918 N.Y.S.2d 202; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218; Matter of Nieves v. Girimonte, 309 A.D.2d 753, 765 N.Y.S.2d 64). Finally, the petitioner failed to demonstrate that the City would not be prejudiced if this petition were granted and a notice of claim were permitted to be served almost nine months after the accident, especially given the transitory nature of the defect in the curb and the admittedly changed condition of the accident site ( see Matter of Valentine v. City of New York, 72 A.D.3d 981, 982, 898 N.Y.S.2d 515; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 153, 851 N.Y.S.2d 218; Matter of Aguilar v. Town of Islip, 294 A.D.2d 358, 359, 741 N.Y.S.2d 732; cf. Matter of Ruffino v. City of New York, 57 A.D.3d 550, 551, 868 N.Y.S.2d 739).
Accordingly, the petition for leave to serve a late notice of claim should have been denied.