Opinion
13718N 159313/13
12-09-2014
Helen DARDZINSKA, Petitioner–Respondent, v. CITY OF NEW YORK, et al., Respondents–Appellants.
Rafter & Associates PLLC, New York (Howard K. Fishman of counsel), for appellants. Bader, Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for respondent.
Rafter & Associates PLLC, New York (Howard K. Fishman of counsel), for appellants.
Bader, Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for respondent.
SWEENY, J.P., DeGRASSE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Opinion
Order, Supreme Court, New York County (Kathryn Freed, J.), entered February 14, 2014, which granted petitioner's application for leave to file a late notice of claim upon respondents, unanimously reversed, on the law and the facts, without costs, the application denied, and the petition dismissed.
While no one factor is controlling, here petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal § 50–e[5] ; Matter of Kelley v. New York City Health & Hosps. Corp., 76 A.D.3d 824, 907 N.Y.S.2d 11 [2010] ). Petitioner failed to make an adequate showing, via medical or other evidence, that her claimed injuries prevented her from timely filing a notice of claim (see Matter of Rivera v. New York City Hous. Auth., 25 A.D.3d 450, 807 N.Y.S.2d 373 [1st Dept.2006] ). That this is true is underscored by the fact that she was able to file a report with her employer within 90 days of her accident (see Matter of Casale v. City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 [1st Dept.2012] ).
It is undisputed that respondents did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90–day service period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service (id.; Matter of Rivera, 25 A.D.3d at 451, 807 N.Y.S.2d 373 ).