From Casetext: Smarter Legal Research

Ribeiro v. Town of North Hempstead

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 1994
607 N.Y.S.2d 108 (N.Y. App. Div. 1994)

Opinion

January 31, 1994

Appeal from the Supreme Court, Nassau County (Becker, J.).


Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and so much of the motion as sought leave to serve late notices of claim upon the appellants is denied.

The Supreme Court improvidently exercised its discretion in permitting the service of the late notices of claim upon the appellants. The plaintiffs failed to proffer a valid and reasonable excuse for their delay in seeking permission to serve late notices of claim (see, General Municipal Law § 50-e). Their vague and unsubstantiated allegations regarding their inability to speak English, their ignorance of the possibility of commencing a lawsuit, and the purported disability suffered by the injured plaintiff, were conclusory in nature and were patently inadequate to warrant the granting of the application (see, e.g., Matter of D'Anjou v. New York City Health Hosps. Corp., 196 A.D.2d 818; Matter of Gandia v. New York City Hous. Auth., 173 A.D.2d 824; Matter of Perez v. New York City Hous. Auth., 156 A.D.2d 177; Matter of Mallory v. City of New York, 135 A.D.2d 636; Matter of Perry v. City of New York, 133 A.D.2d 692; Figueroa v. City of New York, 92 A.D.2d 908).

The plaintiffs also failed to demonstrate that the appellants "acquired actual knowledge of the essential facts constituting the claim" (General Municipal Law § 50-e) within 90 days after the claim arose or a reasonable time thereafter. While the plaintiffs allege that foliage obscured a motorist's view of a stop sign and thereby caused the automobile accident in which the injuries were sustained, the letter of an insurance company regarding the accident failed to provide the Incorporated Village of Mineola with sufficient notice of this claim. The letter, which was improperly addressed to "The Town of Mineola", did not identify the plaintiffs as claimants, and it failed to set forth with adequate specificity the nature of the claim and the manner in which it arose (see, General Municipal Law § 50-e, [5]; Matter of D'Alessandro v. New York City Tr. Auth., 192 A.D.2d 505; Altmayer v. City of New York, 149 A.D.2d 638; Caselli v. City of New York, 105 A.D.2d 251). Similarly, the County of Nassau did not acquire actual knowledge of the claim by reason of police reports regarding the accident, inasmuch as such reports do not constitute notice to a municipality (see, Matter of Dube v. City of New York, 158 A.D.2d 457; Matter of Perry v. City of New York, supra; Caselli v. City of New York, supra). In any event, the reports upon which the plaintiffs rely made no reference to the alleged foliage-obscured stop sign (see generally, Matter of Wertenberger v. Village of Briarcliff Manor, 175 A.D.2d 922; Zimmerman v. City of New York, 161 A.D.2d 591).

Finally, there is no question that the appellants were prejudiced by the plaintiffs' delay in seeking leave to file a late notice of claim, since, during the 13-month delay, the condition of the foliage unquestionably changed. Thus, the appellants were deprived of an opportunity to conduct a reasonably prompt investigation of the alleged condition (see, Matter of Perry v. City of New York, supra; Matter of Thom v Village of Wappingers Falls, 131 A.D.2d 855; Matter of Albanese v Village of Floral Park, 128 A.D.2d 611). Sullivan, J.P., Rosenblatt, Pizzuto and Joy, JJ., concur.


Summaries of

Ribeiro v. Town of North Hempstead

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 1994
607 N.Y.S.2d 108 (N.Y. App. Div. 1994)
Case details for

Ribeiro v. Town of North Hempstead

Case Details

Full title:PIEDADE RIBEIRO et al., Respondents, v. TOWN OF NORTH HEMPSTEAD…

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

Date published: Jan 31, 1994

Citations

607 N.Y.S.2d 108 (N.Y. App. Div. 1994)
607 N.Y.S.2d 108

Citing Cases

Matarrese v. New York City Health & Hospitals Corp.

When all the relevant facts and circumstances of this case are taken into consideration, it is clear that it…

Matter of Goldberg v. County of Suffolk

The Supreme Court did not improvidently exercise its discretion in denying the petitioners' application for…