Opinion
2012-11-21
In the Matter of Elena CAMET, appellant, v. COUNTY OF SUFFOLK, respondent.
Scott Lockwood, North Babylon, N.Y., for appellant. Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondent.
Scott Lockwood, North Babylon, N.Y., for appellant. Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
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, Suffolk County (Farneti, J.), dated October 12, 2011, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
Pursuant to General Municipal Law § 50–e(5), a court has the discretion to permit the service of a late notice of claim. The relevant factors for the court to consider include whether (1) the petitioner demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in maintaining its defense on the merits ( seeGeneral Municipal Law 50–e[5]; Matter of Rush v. County of Suffolk, 35 A.D.3d 619, 619, 826 N.Y.S.2d 640;Matter of Henriques v. City of New York, 22 A.D.3d 847, 848, 803 N.Y.S.2d 194;Bovich v. East Meadow Pub. Lib., 16 A.D.3d 11, 19–20, 789 N.Y.S.2d 511).
Here, the petitioner's conclusory assertions were insufficient to demonstrate a reasonable excuse for her failure to serve a timely notice of claim and for the delay in seeking leave to serve the late notice of claim ( see Matter of Alvarez v. New York City Hous. Auth., 97 A.D.3d 668, 670, 948 N.Y.S.2d 648;Matter of Hill v. New York City Tr. Auth., 68 A.D.3d 866, 867, 890 N.Y.S.2d 627). Furthermore, the respondent did not acquire actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter ( seeGeneral Municipal Law § 50–e [1], [5] ). Neither the domestic incident report completed by the petitioner two days before her stolen vehicle was damaged in an accident nor the police accident report completed on the date of the accident provided the respondent with actual knowledge of the essential facts constituting the petitioner's present claim that her vehicle was damaged due to the respondent's negligence in allegedly releasing her vehicle to a third party withouther permission five days before the accident ( see Matter of Alvarez v. New York City Hous. Auth., 97 A.D.3d at 669–670, 948 N.Y.S.2d 648;Matter of Hill v. New York City Tr. Auth., 68 A.D.3d at 867, 890 N.Y.S.2d 627;Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 406, 837 N.Y.S.2d 330). Finally, the petitioner did not establish that the delay in commencing this proceeding will not substantially prejudice the respondent in maintaining its defense on the merits ( see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218;Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 612, 744 N.Y.S.2d 880;Matter of Sheff v. County of Westchester, 279 A.D.2d 632, 633, 719 N.Y.S.2d 696).
Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.