Opinion
May 25, 1983
Appeal from the Supreme Court, Erie County, Kuszynski, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Boomer and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Plaintiff Frederick Baehre was injured in July, 1981 while installing astroturf in Rich Stadium. In April, 1982 plaintiffs moved, pursuant to subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law to file a late notice of claim against defendant alleging violations of the Labor Law and the Federal Occupational Safety and Health Law. In support of their motion, plaintiffs offer no excuse for failing to file a notice of claim within the applicable 90-day period (General Municipal Law, § 50-e, subd 1). They merely allege that the delay resulted in no prejudice to defendant since its employees were also on the worksite and because its violation of the Labor Law in failing to provide a safe place to work results in absolute liability, for which there is no defense. Defendant's affidavit in opposition to plaintiffs' motion repudiates their assertion that it had actual knowledge of the claim and denies that the employee specifically mentioned in plaintiffs' affidavit is a county employee. Accordingly, plaintiffs have failed to present sufficient proof that the county had actual knowledge of the essential facts constituting the claim ( Matter of Cooper v City of Rochester, 84 A.D.2d 947). Furthermore, plaintiffs' contention that there is no defense to a violation of sections 240 Lab. and 241 Lab. of the Labor Law is without merit because defendant may raise the defense of comparative negligence in a claim alleging violation of subdivision 6 of section 241 ( Long v Forest-Fehlhaber, 55 N.Y.2d 154; Van Slyke v Niagara Mohawk Power Corp., 93 A.D.2d 990). Defendant states in its affidavit that plaintiff Frederick Baehre's employer and any potential witnesses from the company have relocated. Defendant has, therefore, been prejudiced in its ability to investigate the incident and the working conditions under which the employer installed the astroturf. The rigors of the statutory notice requirement have been considerably relaxed by the amendment of section 50-e Gen. Mun. of the General Municipal Law permitting a broader area in which the court may exercise its discretion in granting an extension. However, plaintiff must submit competent evidence upon which the court may exercise its discretion ( Matter of Persi v Churchville-Chili Cent. School Dist., 72 A.D.2d 946, affd 52 N.Y.2d 988). Were we to allow the filing of a late notice of claim under these circumstances wherein plaintiffs have not submitted competent proof of knowledge on the part of defendant or lack of prejudice and have not offered any justifiable excuse for the delay, "precious little of section 50-e Gen. Mun. of the General Municipal Law would survive in this department" ( Matter of Morris v County of Suffolk, 88 A.D.2d 956, 957; see, also, Matter of Heather v County of Rensselaer, 88 A.D.2d 718; Tarquinio v City of New York, 84 A.D.2d 265, affd 56 N.Y.2d 950; Williams v Town of Irondequoit, 59 A.D.2d 1049).