Opinion
2013-09883
08-12-2015
In the Matter of Jose FERNANDEZ, appellant, v. CITY OF NEW YORK, respondent.
Hofmann & Schweitzer, New York, N.Y. (Paul T. Hofmann of counsel), for appellant. Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Michael V. DeSantis of counsel), for respondent.
Hofmann & Schweitzer, New York, N.Y. (Paul T. Hofmann of counsel), for appellant.
Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Michael V. DeSantis of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
Opinion In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated June 17, 2013, which denied the petition.
ORDERED that the order is affirmed, with costs.
In determining whether to extend the time to serve a notice of claim, the court must consider “ ‘whether the public corporation acquired actual [knowledge] of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter,’ ” as well as whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits (Matter of Katsiouras v. City of New York, 106 A.D.3d 916, 917, 965 N.Y.S.2d 533, quoting Matter of Jackson v. Newburgh Enlarged City School Dist., 85 A.D.3d 1031, 1031, 925 N.Y.S.2d 856 ; see General Municipal Law § 50–e[5] ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ).
Here, the record that a call had been made to the 911 emergency number, an ambulance report, and hospital records submitted by the petitioner show only that the respondent, the City of New York, had actual knowledge of the petitioner's accident, but not that the City had actual knowledge of the essential facts constituting the petitioner's claims that it had violated Labor Law §§ 200, 240(1), and 241(6) (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 149–150, 851 N.Y.S.2d 218 ; Matter of DiBella v. City of New York, 234 A.D.2d 366, 650 N.Y.S.2d 311 ; cf. Matter of Fennell v. City Sch. Dist. of City of Long Beach, 118 A.D.3d 783, 783–784, 987 N.Y.S.2d 442 ). Moreover, the petitioner's claimed ignorance of the notice of claim requirement does not excuse his failure to timely serve a notice of claim (see Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 791, 980 N.Y.S.2d 132 ; Quilliam v. State, 282 A.D.2d 590, 723 N.Y.S.2d 389 ; Matter of Gilliam v. City of New York, 250 A.D.2d 680, 673 N.Y.S.2d 172 ; Weber v. County of Suffolk, 208 A.D.2d 527, 616 N.Y.S.2d 807 ). Further, the petitioner's excuse that he was unaware of the severity of his injury “is unavailing without supporting medical evidence explaining why the possible permanent effects of the injury took so long to become apparent and be diagnosed” (Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 151, 851 N.Y.S.2d 218 ; see Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d at 791, 980 N.Y.S.2d 132 ). Finally, the delay in serving the notice of claim prejudiced the City, as it was prevented from conducting an investigation in which it could have examined the conditions and circumstances of the alleged incident within 90 days after the alleged incident or within a reasonable time thereafter, and could have interviewed witnesses while their memories were still fresh (see Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 904, 973 N.Y.S.2d 312 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 153, 851 N.Y.S.2d 218 ; Matter of Gillum v. County of Nassau, 284 A.D.2d 533, 726 N.Y.S.2d 458 ).
The petitioner's remaining contentions are improperly raised for the first time on appeal (see NYCTL 2009–A Trust v. Tsafatinos, 101 A.D.3d 1092, 1094, 956 N.Y.S.2d 571 ; NYU Hosp. for Joint Diseases v. Country Wide Ins. Co., 84 A.D.3d 1043, 1044, 925 N.Y.S.2d 89 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition.