Opinion
August 1, 1994
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the application is denied in its entirety.
The infant petitioner Jennifer Leiblein was injured when she was struck by an automobile owned and operated by a third party, as she was riding her bicycle on a street in the Town of Southold. As a result, she suffered a fractured left ankle and lower left leg. Although the accident occurred on September 24, 1991, Jennifer's parents did not consult a lawyer until the end of June 1992. The application for leave to serve a late notice of claim was thereafter made on or about August 21, 1992, eleven months after the accident. The court granted the application with respect to the infant petitioner and denied the application with respect to the derivative claim.
We agree with the Town that under the circumstances of this case, the court improvidently exercised its discretion when it granted the application for leave to serve a late notice of claim with respect to the infant petitioner. The petitioner failed to provide a reasonable excuse for the delay (see, Matter of Plantin v. New York City Hous. Auth., 203 A.D.2d 579; Carbone v Town of Brookhaven, 176 A.D.2d 778; Dube v. City of New York, 158 A.D.2d 457), and, although an infant is involved, it is clear that the delay was not related to the infancy. While the absence of a nexus between the delay and the infancy will not automatically preclude the granting of leave to serve a late notice of claim (see, Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671, 672), certainly "the absence of a showing that the delay is a product of the infancy itself is a factor which militates against granting such relief" (Matter of Gandia v. New York City Hous. Auth., 173 A.D.2d 824; Matter of D'Anjou v. New York City Health Hosps. Corp., 196 A.D.2d 818; Kardashinsky v New York City Hous. Auth., 182 A.D.2d 676).
The petitioner's contention that the Town had actual knowledge of the claim by virtue of the police report that was made on the date of the accident is without merit. "Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim" (Matter of Caselli v City of New York, 105 A.D.2d 251, 255; Williams v. Town of Irondequoit, 59 A.D.2d 1049). Moreover, the police accident report merely indicated that the accident occurred when the operator of the motor vehicle could not stop in time to avoid hitting the infant petitioner. The report does not mention anything about the claimed negligence — an alleged accumulation of sand on the roadway. Since there is nothing in the police report that would connect the accident with any negligence on the part of the Town, knowledge cannot be imputed to the Town (see, Matter of Mallory v. City of New York, 135 A.D.2d 636; Matter of Perry v. City of New York, 133 A.D.2d 692; Levine v. City of New York, 111 A.D.2d 785).
In view of the transitory nature of the alleged condition, the unreasonable delay in seeking leave to serve a late notice of claim, and the lack of knowledge by the appellant, the application should have been denied (see, Guity v. City of New York, 191 A.D.2d 352; Matter of D'Andrea v. City of Glen Cove Publ. Schools, 143 A.D.2d 747; Kravitz v. County of Rockland, 112 A.D.2d 352, affd 67 N.Y.2d 685). Thompson, J.P., Balletta, Krausman and Florio, JJ., concur.