Opinion
2013-11-6
In the Matter of Gregory DESTINE, respondent, v. CITY OF NEW YORK, et al., appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Daryl Gregory Leon, and Jane L. Gordon of counsel), for appellants.
DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In a proceeding, inter alia, pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the appeal is from an order of the Supreme Court, Kings County (Ash, J.), dated August 17, 2012, which granted the petition.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the petition is denied.
In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits ( seeGeneral Municipal Law § 50–e[5]; Platt v. New York City Health & Hosps. Corp., 105 A.D.3d 1026, 1027, 964 N.Y.S.2d 223;Matter of Acosta v. City of New York, 39 A.D.3d 629, 630, 834 N.Y.S.2d 267;Matter of Henriques v. City of New York, 22 A.D.3d 847, 848, 803 N.Y.S.2d 194).
Here, the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition ( see Matter of Bell v. City of New York, 100 A.D.3d 990, 954 N.Y.S.2d 229). The petitioner's ignorance of the law did not constitute a reasonable excuse ( see id.; Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348;Meyer v. County of Suffolk, 90 A.D.3d 720, 721, 934 N.Y.S.2d 235). Furthermore, the petitioner failed to explain the additional lapse of six months between his attempt to serve the late notice of claim without the required court authorization and the commencement of the instant proceeding, inter alia, to deem the late notice of claim timely served nunc pro tunc ( see Matter of Gobardhan v. City of New York, 64 A.D.3d 705, 706, 882 N.Y.S.2d 692;Matter of Camilleri v. County of Suffolk, 190 A.D.2d 669, 593 N.Y.S.2d 73).
Moreover, the City of New York did not acquire timely, actual knowledge of the essential facts constituting the claims. The evidence submitted by the petitioner did not establish that the City had actual knowledge of the essential facts constituting the claims of, inter alia, false arrest, false imprisonment, malicious prosecution, assault, and battery within 90 days following their accrual or a reasonable time thereafter ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;Matter of Rivera v. City of New York, 88 A.D.3d 1004, 1005, 931 N.Y.S.2d 400;Matter of Blanco v. City of New York, 78 A.D.3d 1048, 910 N.Y.S.2d 921;Matter of Bush v. City of New York, 76 A.D.3d 628, 906 N.Y.S.2d 597;Hendrix v. City of New York, 76 A.D.3d 613, 905 N.Y.S.2d 910;Matter of Griffin v. City of New York, 69 A.D.3d 938, 892 N.Y.S.2d 800;Matter of Charles v. City of New York, 67 A.D.3d 793, 887 N.Y.S.2d 854). In addition, the disallowed late notice of claim served upon the City's Comptroller more than 4 1/2 months after the 90–day statutory period had elapsed did not provide the City with actual knowledge of the essential facts constituting the claims within a reasonable time after the expiration of the statutory period ( see Matter of Valila v. Town of Hempstead, 107 A.D.3d 813, 815, 968 N.Y.S.2d 100).
The evidence submitted by the petitioner did not rebut the City's contention that the 10–month delay after the expiration of the 90–day period in seeking leave to deem the disallowed late notice of claim timely served nunc pro tunc would substantially prejudice its ability to conduct an investigation of the claims ( see Godfrey v. City of New Rochelle, 74 A.D.3d 1018, 1019, 903 N.Y.S.2d 497;Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 744 N.Y.S.2d 880;Matter of DiBella v. City of New York, 234 A.D.2d 366, 367, 650 N.Y.S.2d 311).
Accordingly, the Supreme Court should have denied the petition.
We have not considered the petitioner's additional excuse for the delay and additional evidence that were improperly submitted to the Supreme Court by the petitioner for the first time in reply ( see Matter of Bell v. City of New York, 100 A.D.3d at 991, 954 N.Y.S.2d 229;Matter of Allstate Ins. Co. v. Dawkins, 52 A.D.3d 826, 827, 861 N.Y.S.2d 391).