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In re Lorseille v. N.Y. City Housing

Appellate Division of the Supreme Court of New York, Second Department
Jun 25, 2002
744 N.Y.S.2d 880 (N.Y. App. Div. 2002)

Opinion

2001-05517

Submitted May 15, 2002.

June 25, 2002.

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, Kings County (Bernstein, J.), dated May 14, 2001, which denied her application.

Harmon Linder (Mark Linder and Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Bhavisha H. Patel and Brian J. Isaac] of counsel), for appellant.

Herzfeld Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, and Jeannine LaPlace of counsel), for respondent.

MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.


ORDERED that the order is affirmed, with costs.

The key factors to be considered in deciding an application for leave to serve a late notice of claim under the circumstances of this case are whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits (see General Municipal Law § 50-e; Matter of Lyerly v. City of New York, 283 A.D.2d 647; Cresci v. New York City Indus. Dev. Agency, 279 A.D.2d 497; Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746; Matter of Bollerman v. New York City School Constr. Auth., 247 A.D.2d 469; Matter of James v. City of New York, 242 A.D.2d 630).

The respondent did not have actual knowledge of the essential facts constituting the claim within the appropriate time period, and the petitioner has failed to demonstrate a reasonable excuse for the delay in serving a timely notice of claim (see Matter of Guiliano v. Town of Oyster Bay, 244 A.D.2d 408; Matter of Serrano v. New York City Hous. Auth., 197 A.D.2d 694). Furthermore, the petitioner did not establish that the two-month delay after the expiration of the 90-day period would not substantially prejudice the respondent in maintaining a defense on the merits (see Johnson v. Katonah-Lewisboro School Dist., 285 A.D.2d 490, 491; Matter of Yearusskaya v. New York City Tr. Auth., 279 A.D.2d 583).

ALTMAN, J.P., FEUERSTEIN, FRIEDMANN, SCHMIDT and TOWNES, JJ., concur.


Summaries of

In re Lorseille v. N.Y. City Housing

Appellate Division of the Supreme Court of New York, Second Department
Jun 25, 2002
744 N.Y.S.2d 880 (N.Y. App. Div. 2002)
Case details for

In re Lorseille v. N.Y. City Housing

Case Details

Full title:IN THE MATTER OF YSEULT LORSEILLE, appellant, v. NEW YORK CITY HOUSING…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 25, 2002

Citations

744 N.Y.S.2d 880 (N.Y. App. Div. 2002)
295 A.D.2d 612

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