May 4, 1998
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order is affirmed, with costs.
The determination of whether to grant an application for leave to serve a late notice of claim is left to the sound discretion of the court (see, Matter of Carty v. City of New York, 228 A.D.2d 592; Matter of Rudisel v. City of New York, 217 A.D.2d 702; Ortega v. New York City Hous. Auth., 167 A.D.2d 337). Here, the Supreme Court did not improvidently exercise its discretion in denying the petitioner's application.
The petitioner's excuse for his delay in serving a notice of claim, that he was unfamiliar with the statutes of New York and the necessity to serve a notice of claim within the 90-day statutorily-prescribed period, has repeatedly been held to be unacceptable (see, Alper v. City of New York, 228 A.D.2d 390; Matter of Ragin v. City of New York, 222 A.D.2d 678; Matter of Dancy v. Poughkeepsie Hous. Auth., 220 A.D.2d 413, 414; Weber v. County of Suffolk, 208 A.D.2d 527, 528). Additionally, the petitioner's injury, a fracture to his right lower extremity, is not an incapacitation preventing the serving of a timely notice of claim (see, Matter of Montanez v. City of New York, 156 A.D.2d 185; see also, Matter of Franco v. City of New York, 270 App. Div. 1050).
There is no demonstration that the City had actual knowledge of this accident within the 90-day statutorily-prescribed period or a reasonable time thereafter (cf., Matter of Tricomi v. New York City Hous. Auth., 191 A.D.2d 447). The conclusory assertion of the petitioner's counsel, who lacked personal knowledge of the facts, that the defective portion of the sidewalk had been in that condition for a long period of time prior to the alleged accident is unsupported by the record.
The unexcused delay in serving a notice of claim and the passage of time has deprived the City of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation, especially given the transitory nature of the defect in the sidewalk (cf., Matter of Resto v. City of New York, 240 A.D.2d 499).
Rosenblatt, J.P., Ritter, Krausman and Goldstein, JJ., concur.