Opinion
Decided and Entered: July 12, 2001.
Appeal from an order of the Supreme Court (Lynch, J.), entered May 25, 2000 in Schenectady County, which denied petitioner's application pursuant to General Municipal Law § 50-e (5) for leave to file a late notice of claim.
Paul J. Catone, Albany, for appellant.
Maynard, O'Connor, Smith Catalinotto (Michael T. Snyder of counsel), Albany, for respondent.
Before: Cardona, P.J., Peters, Spain, Carpinello and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Seeking to recover for an injury sustained on May 13, 1999 in the course of construction work at respondent's junior high school, petitioner moved to file a late notice of claim on February 3, 2000. In an affidavit in support of this application, petitioner alleges that as he stepped off a scaffolding, his foot landed on cinderblock debris and he twisted his ankle. The sole explanation for the late notice was that initially he did not realize the extent of his injury, including the need for surgery. Supreme Court denied the application, prompting this appeal.
Supreme Court has broad discretion to extend the time to serve a notice of claim under General Municipal Law § 50-e, a determination which must take into consideration various factors, including whether the respondent had actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, whether the delay substantially prejudiced the respondent in maintaining its defense on the merits and whether the petitioner seeking to extend the time provided a reasonable excuse for such delay (see, General Municipal Law § 50-e; Matter of Lacey v. Village of Lake Placid, 280 A.D.2d 863). Here, even if the record established that petitioner was initially unable to ascertain the severity of his injury, he knew as of November 8, 1999 that he had a torn anterior talofibular ligament and was advised on this date of the risks and benefits of the recommended surgery to repair it. Notwithstanding, nearly three months passed before the instant application was made. No reasonable excuse was given for this delay (see, Matter of Jones v. Jamestown Pub. School Dist., 259 A.D.2d 1020;Matter of Stenowich v. Colonie Indus. Dev. Agency, 151 A.D.2d 894, 895,lv denied 74 N.Y.2d 615; Matter of Morgan v. City of Elmira, 115 A.D.2d 885, 887, appeal dismissed 67 N.Y.2d 905).
Petitioner received orthopedic treatment for his injury between July 1999 and October 1999. A cast was placed on his leg in early August 1999 for approximately one month and he thereafter received physical therapy for another month. Notations in his medical records reveal that petitioner continuously believed that "more may be wrong" with his ankle than a bone contusion and that a wrong diagnosis had been made.
Moreover, petitioner failed in his burden of demonstrating that respondent had actual timely knowledge of the incident (see, Washington v. City of New York, 72 N.Y.2d 881, 883; Matter of Gizzi v. City of Troy, 210 A.D.2d 644; compare, Matter of Lacey v. Village of Lake Placid, supra; Gamoneda v. New York City Bd. of Educ., 259 A.D.2d 348;Matter of Lopez v. New York City Hous. Auth., 225 A.D.2d 492; Raizner v. City of New York, 174 A.D.2d 423, 424). Under these circumstances, we are unable to conclude that Supreme Court abused its discretion in denying the motion (see, Matter of McLaughlin v. North Colonie Cent. School Dist., 269 A.D.2d 658; Matter of Stenowich v. Colonie Indus. Dev. Agency, supra; Matter of Morgan v. City of Elmira, supra; Matter of Johnston v. Town of Putnam Val. Police Dept., 167 A.D.2d 612), even assuming that the element of substantial prejudice is lacking given the transitory nature of the construction site (see, e.g., Matter of Gorinshek v. City of Johnstown, 186 A.D.2d 335; Matter of Sutton v. Town of Schuyler Falls, 185 A.D.2d 430; Matter of Ferrer v. City of New York, 172 A.D.2d 240; Matter of Harris v. Dormitory Auth. of State of N.Y., 168 A.D.2d 560).
Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, without costs.