Opinion
CA 03-00805.
November 21, 2003.
Appeal from that part of an order of Supreme Court, Erie County (Sedita, Jr., J.), entered September 16, 2002, that granted plaintiff's application for leave to serve a late notice of claim against defendant Buffalo Municipal Housing Authority.
Law Offices of Louis H. Siegel, Buffalo (Margot S. Bennett of Counsel), for Defendant-Appellant.
Knoer, Crawford Bender, LLP, Buffalo (Paul Allen Bender of Counsel), for Plaintiff-Respondent.
Before: Present: Wisner, J.P., Hurlbutt, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
It is hereby Ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the application is denied.
Memorandum: We agree with defendant Buffalo Municipal Housing Authority (Housing Authority) that Supreme Court abused its discretion in granting plaintiff's application pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against the Housing Authority. Although courts are vested with broad discretion in determining whether to grant such an application ( see Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965), here the court abused that discretion inasmuch as plaintiff failed to establish that the Housing Authority had actual knowledge of the essential facts constituting the claim ( see Nationwide Ins. Co. v. Village of Alexandria Bay, 299 A.D.2d 855, 856). Plaintiff stated in his supporting affidavit that he was "informed by [his] employer * * * that city police, transit patrolmen and investigators immediately investigated the accident." That statement alone is insufficient to establish that the Housing Authority had the requisite notice of the essential facts constituting the claim ( see Oates v. City of Niagara Falls [appeal No. 2], 247 A.D.2d 829; Matter of Dancy v. Poughkeepsie Hous. Auth., 220 A.D.2d 413).