Opinion
2012-11-28
In the Matter of Joseph BELL, respondent, v. CITY OF NEW YORK, appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Regina Shulimovich, and Lisa A. Giunta of counsel), for appellant. Costello & Costello, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Regina Shulimovich, and Lisa A. Giunta of counsel), for appellant. Costello & Costello, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the SupremeCourt, Kings County (Ash, J.), dated August 12, 2011, which granted the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.
The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim. The petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition ( see Matter of Dube v. City of New York, 158 A.D.2d 457, 551 N.Y.S.2d 50). The petitioner's ignorance of the law and late retention of counsel did not constitute reasonable excuses ( see Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348;Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125;Matter of Ealey v. City of New York, 204 A.D.2d 720, 612 N.Y.S.2d 445). Furthermore, the petitioner failed to submit any medical evidence to support his assertion that he was incapacitated to such an extent that he could not have complied with the statutory requirement to serve a timely notice of claim ( see Matter of Taylor v. County of Suffolk, 90 A.D.3d at 770, 934 N.Y.S.2d 348;Matter of Wright v. City of New York, 66 A.D.3d at 1038, 888 N.Y.S.2d 125;Matter of Portnov v. City of Glen Cove, 50 A.D.3d 1041, 856 N.Y.S.2d 655;Matter of Papayannakos v. Levittown Mem. Special Educ. Ctr., 38 A.D.3d 902, 834 N.Y.S.2d 214).
Contrary to the petitioner's contention, the City did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the accident or a reasonable time thereafter. The defect indicated on a map filed with the New York City Department of Transportation by the Big Apple Pothole and Sidewalk Protection Corporation more than nine years before the accident did not suffice to give the City actual knowledge of the essential facts underlying the petitioner's present claim or his theory of liability against the City ( see Matter of Khalid v. City of New York, 91 A.D.3d 779, 780, 937 N.Y.S.2d 124;Matter of Konstantinides v. City of New York, 278 A.D.2d 235, 717 N.Y.S.2d 301;Matter of Rios v. City of New York, 180 A.D.2d 801, 802, 580 N.Y.S.2d 438). In addition, the petitioner failed to demonstrate that his delay of more than four months in commencing this proceeding would not substantially prejudice the City in maintaining its defense, given the transitory nature of the sidewalk defect ( see Matter of Valentine v. City of New York, 72 A.D.3d 981, 982, 898 N.Y.S.2d 515;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 153, 851 N.Y.S.2d 218;Matter of Papayannakos v. Levittown Mem. Special Educ. Ctr., 38 A.D.3d at 903, 834 N.Y.S.2d 214;Matter of Gofman v. City of New York, 268 A.D.2d 588, 702 N.Y.S.2d 620).
The petitioner improperly asserted an additional excuse for the delay for the first time in a reply affidavit and, therefore, that excuse could not properly be considered ( see Matter of Wright v. City of New York, 99 A.D.3d 717, 951 N.Y.S.2d 750;Matter of Cali v. City of Poughkeepsie, 84 A.D.3d 1229, 923 N.Y.S.2d 880;Fenner v. County of Nassau, 80 A.D.3d 555, 556, 914 N.Y.S.2d 653).