Opinion
2019–12962 Index No. 609167/19
03-23-2022
In the Matter of Jeanmarie MCDONALD, appellant, v. VILLAGE OF GREAT NECK ESTATES, respondent.
Buitrago & Associates, PLLC, New York, NY (Marcelo A. Buitrago and Rick J. Lasher of counsel), for appellant.
Buitrago & Associates, PLLC, New York, NY (Marcelo A. Buitrago and Rick J. Lasher of counsel), for appellant.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50–e(5) to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered October 30, 2019. The order denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
In determining whether a petitioner should be granted leave to serve a late notice of claim upon a public corporation, the court should consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving a notice of claim, whether the public corporation acquired actual knowledge of the essential facts of the claim within the statutory 90–day period or within a reasonable time thereafter, and whether the public corporation will be substantially prejudiced by the delay in its defense on the merits (see General Municipal Law § 50–e[5] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Bermudez v. City of New York, 167 A.D.3d 733, 734, 89 N.Y.S.3d 289 ).
Here, the error of the petitioner's counsel regarding the identity of the public corporation against which it should make a claim does not provide a reasonable excuse for the failure to serve a timely notice of claim on the Village of Great Neck Estates (see General Municipal Law § 50–e[5] ; Matter of Thomas v. New York City Housing Auth., 200 A.D.3d 1051, 1052, 155 N.Y.S.3d 807 ; Matter of Ramos v. New York City Hous. Auth., 162 A.D.3d 884, 885, 80 N.Y.S.3d 85 ; Kelly v. City of New York, 153 A.D.3d 1388, 1389, 63 N.Y.S.3d 385 ; Matter of Burgess v. County of Suffolk, 56 A.D.3d 769, 770, 868 N.Y.S.2d 250 ). Moreover, the petitioner does not assert that the Village acquired actual knowledge of the essential facts of the claim within the 90–day statutory time period or within a reasonable time thereafter (see Matter of Perez v. City of New York, 175 A.D.3d 1534, 1535, 109 N.Y.S.3d 153 ). The petitioner also failed to present "some evidence or plausible argument" that the Village would not be substantially prejudiced by the delay in its defense on the merits ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Bermudez v. City of New York, 167 A.D.3d at 735, 89 N.Y.S.3d 289 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.
CONNOLLY, J.P., ROMAN, MALTESE and CHRISTOPHER, JJ., concur.