Opinion
1211 CA 19–00604
01-31-2020
Teresa VITKO, Plaintiff–Respondent, v. Scott S. SIMON, Defendant, and Town of Orchard Park, Defendant-Appellant.
SUGARMAN LAW FIRM LLP, BUFFALO (MARINA A. MURRAY OF COUNSEL), FOR DEFENDANT–APPELLANT. FRIEDMAN & RANZENHOFER, P.C., AKRON (SAMUEL A. ALBA OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
SUGARMAN LAW FIRM LLP, BUFFALO (MARINA A. MURRAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
FRIEDMAN & RANZENHOFER, P.C., AKRON (SAMUEL A. ALBA OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is denied.
Memorandum: Supreme Court abused its discretion in granting plaintiff's application for leave to serve a late notice of claim against defendant Town of Orchard Park (Town) nearly 11 months after the incident in question occurred (see generally Tate v. State Univ. Constr. Fund, 151 A.D.3d 1865, 1865, 58 N.Y.S.3d 783 (4th Dept. 2017) ). "In determining whether to grant such leave, the court must consider, inter alia, whether the [plaintiff] has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality" ( Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895 (4th Dept. 2010) ; see King v. Niagara Falls Water Auth., 147 A.D.3d 1398, 1399, 47 N.Y.S.3d 185 (4th Dept. 2017), lv denied 29 N.Y.3d 916, 64 N.Y.S.3d 666, 86 N.E.3d 558 [2017] ; see generally General Municipal Law § 50–e [5] ). Here, plaintiff failed to meet her burden of demonstrating that the Town had actual knowledge of the incident within 90 days of its occurrence (see Powell v. Central N.Y. Regional Transp. Auth., 169 A.D.3d 1412, 1413–1414, 92 N.Y.S.3d 791 (4th Dept. 2019), lv denied 34 N.Y.3d 904, 114 N.Y.S.3d 280 , 137 N.E.3d 1105 [2019] ; Friend, 71 A.D.3d at 1407, 895 N.Y.S.2d 895 ). Indeed, plaintiff does not dispute that the Town lacked actual knowledge of any injury at the subject property until the Town was served with plaintiff's application. Plaintiff likewise failed to establish a reasonable excuse for her failure to timely serve the notice of claim, and to establish that a late notice of claim would not substantially prejudice the Town's interests (see generally Tate, 151 A.D.3d at 1865–1866, 58 N.Y.S.3d 783 ; Andrews v. Long Is. R.R., 110 A.D.3d 653, 654, 972 N.Y.S.2d 633 (2d Dept. 2013) ; Matter of Portnov v. City of Glen Cove, 50 A.D.3d 1041, 1043, 856 N.Y.S.2d 655 (2d Dept. 2008) ).