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Pico v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 2004
777 N.Y.S.2d 697 (N.Y. App. Div. 2004)

Opinion

2003-08361.

Decided June 1, 2004.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 16, 2003, which denied the petition.

Arye, Lustig Sassower, P.C., New York, N.Y. (Herman S. Steinberg of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Victoria Scalzo of counsel), for respondent.

Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, WILLIAM F. MASTRO, STEVEN W. FISHER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The petitioner failed to establish that the respondent had timely notice of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. Assuming that the respondent had knowledge of the facts constituting the claim because New York City Correction Officers were present at the accident site, "what satisfies the statute is not knowledge of the alleged wrong, but rather, knowledge of the nature of the claim" ( Matter of Shapiro v. County of Nassau, 208 A.D.2d 545; see Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 867, lv denied N.Y.3d [May 4, 2004]; Levette v. Triborough Bridge Tunnel Auth., 207 A.D.2d 330; Matter of Vitali v. City of New York, 205 A.D.2d 636). The speculative assertion of the petitioner's counsel, who lacked personal knowledge of the facts, that the respondent conducted an investigation of the accident, was insufficient to demonstrate that the respondent acquired actual notice of the facts constituting the claim ( see Matter of Embery v. City of New York, 250 A.D.2d 611; Seif v. City of New York, 218 A.D.2d 595, 597).

Furthermore, the petitioner's assertions that he was unfamiliar with the statutory requirement for serving a timely notice of claim and that he did not speak English were unacceptable excuses for his failure to timely serve a notice of claim ( see Gilliam v. City of New York, 250 A.D.2d 680; Matter of Lamper v. City of New York, 215 A.D.2d 484).

Finally, the petitioner failed to rebut the City's assertion that the delay prejudiced its ability to investigate and defend against the claim ( see Matter of Nairne v. New York City Health and Hosps. Corp., 303 A.D.2d 409, 410).

FLORIO, J.P., KRAUSMAN, TOWNES, MASTRO and FISHER, JJ., concur.


Summaries of

Pico v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 1, 2004
777 N.Y.S.2d 697 (N.Y. App. Div. 2004)
Case details for

Pico v. City of New York

Case Details

Full title:IN THE MATTER OF JEORGIO PICO, appellant, v. CITY OF NEW YORK, respondent

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

Date published: Jun 1, 2004

Citations

777 N.Y.S.2d 697 (N.Y. App. Div. 2004)
777 N.Y.S.2d 697

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