Opinion
2013-11-14
Darryl ALLADICE, Petitioner–Appellant, v. The CITY OF NEW YORK, et al., Respondents–Respondents.
Gentile & Associates, New York (Laura Gentile of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Diana Lawless of counsel), for The City of New York, respondent.
Gentile & Associates, New York (Laura Gentile of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Diana Lawless of counsel), for The City of New York, respondent.
Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for The Metropolitan Transportation Authority and The New York City Transit Authority, respondents.
GONZALEZ, P.J., FRIEDMAN, SWEENY, MOSKOWITZ, CLARK, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 14, 2012, which denied petitioner's motion for leave to file an untimely notice of claim, unanimously affirmed, without costs.
Petitioner's application for leave to file a late notice of claim was properly denied. Respondent the City of New York is an out-of-possession landlord that does not have responsibility for the allegedly hazardous condition of the subway platform, and therefore, petitioner's claim against it lacks merit ( see Arteaga v. City of New York, 101 A.D.3d 454, 454, 956 N.Y.S.2d 9 [1st Dept.2012] ). In addition, contrary to petitioner's contention, law office failure does not constitute a reasonable excuse for failing to timely serve the notice of claim ( see Matter of Santiago v. New York City Tr. Auth., 85 A.D.3d 628, 628–629, 925 N.Y.S.2d 500 [1st Dept.2011] ).
Although the absence of a reasonable excuse does not compel denial of the motion ( see Brennan v. Metropolitan Transp. Auth., 110 A.D.3d 437, 972 N.Y.S.2d 238 [1st Dept.2013] ), petitioner also fails to demonstrate that respondents had actual knowledge of the essential facts constituting the claim within the statutory 90–day period or within a reasonable time thereafter ( see id.; Gonzalez v. City of New York, 92 A.D.3d 619, 939 N.Y.S.2d 402 [1st Dept.2012] ). Petitioner's assertion that respondents' employees observed his fall is speculative since he averred in his affidavit that no one came to his aid and he does not suggest that an employee acknowledged witnessing the accident ( see e.g. Lemma v. Off Track Betting Corp., 272 A.D.2d 669, 671, 707 N.Y.S.2d 276 [3d Dept.2000]; Burns v. New York City Tr. Auth., 213 A.D.2d 300, 300–301, 624 N.Y.S.2d 30 [1st Dept.1995] ).
Lastly, petitioner's unsupported assertion that the condition which caused his accident has remained unchanged since his fall is insufficient to demonstrate the lack of any prejudice to NYCTA from his delay ( see Matter of Santiago v. New York City Tr. Auth., 85 A.D.3d 628, 628–629, 925 N.Y.S.2d 500 [1st Dept.2011] ).