Opinion
2002-02584
Argued November 18, 2002.
August 11, 2003.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Nassau County (Joseph, J.), dated February 6, 2002, which denied their application.
Richard J. Katz (DiJoseph Portegello, P.C., New York, N.Y. [Arnold E. DiJoseph III] of counsel), for appellants.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak and Elizabeth Botwin of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
In determining whether to grant leave to serve a late notice of claim, General Municipal Law § 50-e(5) instructs the court to consider certain factors, including whether (1) an infant is involved, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law § 50-e; Matter of Brown v. County of Westchester, 293 A.D.2d 748; Matter of Fierro v. City of New York, 271 A.D.2d 608; Matter of Gaffney v. Town of Hempstead, 226 A.D.2d 721, 722; Matter of Matarrese v. New York City Health Hosps. Corp., 215 A.D.2d 7, 9). The question of whether to grant an application for leave to serve a late notice of claim is committed to the sound discretion of the court ( see Moise v. County of Nassau, 234 A.D.2d 275).
While infancy will automatically toll the one year and 90-day statute of limitations for commencing an action against a municipality ( see General Municipal Law § 50-i; CPLR 208; Henry v. City of New York, 94 N.Y.2d 275), the infancy of an injured petitioner, standing alone, does not compel the granting of an application for leave to serve a late notice of claim (see Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 266; Matter of Brown v. County of Westchester, supra; Matter of Knightner v. City of New York, 269 A.D.2d 397). Here, the delay of more than seven years was not attributable to the injured petitioner's infancy. While this fact is not automatically fatal to an application for permission to serve a late notice, "the absence of a showing that the delay is the product of the infancy itself is a factor which militates against granting such relief" (Matter of D'Anjou v. New York City Health Hosps. Corp., 196 A.D.2d 818, 820, quoting Matter of Gandia v. New York City Hous. Auth., 173 A.D.2d 824; see also Salter v. Housing Auth. of City of N.Y., 251 A.D.2d 585, 586; Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671, 672).
In this case, the petitioner has shown no nexus between the excuse offered for the delay, i.e., the infancy of the injured petitioner, and the delay in filing the notice of claim. Moreover, she has raised no other cognizable reason for the delay because her contentions that she was "unsophisticated about the legal system" and unaware of the possibility of a lawsuit are not reasonable excuses for her failure to serve a timely notice of claim (see e.g. Matter of Gaffney v. Town of Hempstead, supra; Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730; Matter of D'Anjou v. New York City Health and Hosps. Corp., supra at 820).
Contrary to the petitioners' contention, this court's holding in Matter of Kurz v. New York City Health Hosps. Corp. (supra), is not inconsistent with a subsequent decision of this court, Rabanar v. City of Yonkers ( 290 A.D.2d 428). The facts of these two cases are distinguishable. In Matter of Kurz, the petitioner sought leave to serve a late notice of claim alleging medical malpractice in the birth of the petitioner's two infant children. This court found that the Supreme Court properly granted the petitioner's application. In this regard, this court found that the defendant's possession of the children's medical records since the time of the alleged malpractice provided the hospital with actual notice of the claim and the underlying facts within the statutory period ( see Matter of Kurz v. New York City Health Hosps. Corp., supra at 673). In contrast, in the case of Rabanar v. City of Yonkers (supra), infancy, without a nexus between the delay and the infancy, was advanced as the sole basis for failing to timely file a notice of claim and the court found that the municipality did not have actual notice of the essential facts constituting the plaintiff's case ( see Rabanar v. City of Yonkers, supra at 429).
In this case, the petitioners have not shown a nexus between the infancy and the delay, and this court is not persuaded by the petitioners' assertion that the respondents had actual notice of the claim and will not be prejudiced by the delay ( see Matter of D'Anjou v. New York City Health Hosps. Corp., supra; Matter of Morrison v. New York City Health Hosps. Corp., 244 A.D.2d 487; Moise v. County of Nassau, supra; Matter of Fallon v. County of Westchester, 184 A.D.2d 510; Matter of Aviles v. New York City Health Hosps. Corp., 172 A.D.2d 237; Perkins v. New York City Health Hosps. Corp., 167 A.D.2d 150). As stated by this court, "'[w]hat satisfies the statute is not knowledge of the wrong, but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed'" ( Matter of Sica v. Board of Educ. of City of N.Y., 226 A.D.2d 542, 543; see also Matter of Brown v. County of Westchester, 293 A.D.2d 748, supra at 749).
Accordingly, the Supreme Court providently exercised its discretion in denying the petitioners' application.
SANTUCCI, J.P., TOWNES, CRANE and RIVERA, JJ., concur.