Opinion
2014-08275, Index No. 4395/14.
09-23-2015
In the Matter of Basher ABDUL, appellant, v. CITY OF NEW YORK, et al., respondents.
Silver & Kelmachter, LLP, New York, N.Y. (Perry D. Silver, Damon Velardi, and Leslie D. Kelmachter of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Jane L. Gordon of counsel), for respondents.
Silver & Kelmachter, LLP, New York, N.Y. (Perry D. Silver, Damon Velardi, and Leslie D. Kelmachter of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Jane L. Gordon of counsel), for respondents.
Opinion 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 (Jimenez–Salta, J.), dated June 20, 2014, which denied the petition.
ORDERED that the order is affirmed, with costs.
In order to maintain a tort action against a municipality, General Municipal Law § 50–e(1)(a) requires a claimant to serve a notice of claim upon that municipality within 90 days of the date that the claim arose (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 143, 851 N.Y.S.2d 218 ). General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time to serve a notice of claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 143, 851 N.Y.S.2d 218 ; Matter of Lodati v. City of New York, 303 A.D.2d 406, 406–407, 755 N.Y.S.2d 853 ), if the application is made within 1 year and 90 days from the date the claim arose (see Matter of Goffredo v. City of New York, 33 A.D.3d 346, 347, 830 N.Y.S.2d 11 ; Hwangbo v. Nobles, 62 A.D.3d 949, 950, 879 N.Y.S.2d 579 ; Lopez v. Brentwood Union Free School Dist., 149 A.D.2d 474, 474–475, 539 N.Y.S.2d 969 ).
While the merits of a claim ordinarily are not considered in connection with a request for leave to serve a late notice of claim, where the proposed claim is patently without merit, leave to serve a late notice of claim should be denied (see Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 ; Matter of Gaeta v. Incorporated Vil. of Garden City, 72 A.D.3d 683, 684, 897 N.Y.S.2d 653 ; Matter of Besedina v. New York City Tr. Auth., 47 A.D.3d 924, 925, 850 N.Y.S.2d 199 ; Matter of State Farm Fire & Cas. Co. v. Village of Bronxville, 24 A.D.3d 453, 805 N.Y.S.2d 651 ). Here, the merits of the claim alleged in the notice of claim have already been determined by the Supreme Court in an order which has been affirmed by this Court (Matter of Tax Foreclosure Action No. 51, 129 A.D.3d 1093, 12 N.Y.S.3d 263 ; see O'Brien v. Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; Nostrom v. County of Suffolk, 100 A.D.3d 974, 954 N.Y.S.2d 611 ). The petitioner's claim is that the City of New York wrongfully sold or transferred certain real property that he alleges to have an interest in, notwithstanding an alleged court order staying a sale or transfer of the property and the City's knowledge of his claim. The petitioner made these same arguments in Matter of Tax Foreclosure Action No. 51, and the issues already were determined by the Supreme Court (see O'Brien v. Syracuse, 54 N.Y.2d at 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; Nostrom v. County of Suffolk, 100 A.D.3d at 974, 954 N.Y.S.2d 611 ). As the petitioner's underlying claim was patently without merit, the Supreme Court properly denied the petition for leave to serve a late notice of claim (see Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 ; Matter of Gaeta v. Incorporated Vil. of Garden City, 72 A.D.3d 683, 684, 897 N.Y.S.2d 653 ; Matter of Besedina v. New York City Tr. Auth., 47 A.D.3d 924, 925, 850 N.Y.S.2d 199 ).
In any event, the petitioner also failed to demonstrate that his delay in serving his notice of claim was reasonable (see Matter of Gobardhan v. City of New York, 64 A.D.3d 705, 706, 882 N.Y.S.2d 692 ; Matter of Burgess v. County of Suffolk, 56 A.D.3d 769, 770, 868 N.Y.S.2d 250 ; Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81 ; Matter of Camilleri v. County of Suffolk, 190 A.D.2d 669, 593 N.Y.S.2d 73 ).
Accordingly, under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying the petition.
DILLON, J.P., CHAMBERS, HALL and DUFFY, JJ., concur.