Opinion
2013-02-20
In the Matter of Eion KLASS, et al., respondents, v. CITY OF NEW YORK, appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel; Rachel Shalev on the brief), for appellant. Jeffrey H. Schwartz, Brooklyn, N.Y., for respondents.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel; Rachel Shalev on the brief), for appellant. Jeffrey H. Schwartz, Brooklyn, N.Y., for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Ash, J.), dated December 2, 2011, which granted the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
Pursuant to General Municipal Law § 50–e(5), a court has the discretion to permit the service of a late notice of claim. The relevant factors for the court to consider include whether (1) the petitioner demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in maintaining its defense on the merits ( seeGeneral Municipal Law § 50–e [5]; Matter of Henriques v. City of New York, 22 A.D.3d 847, 848, 803 N.Y.S.2d 194;Christoforatos v. City of New York, 285 A.D.2d 622, 728 N.Y.S.2d 675;Matter of Landa v. City of New York, 252 A.D.2d 525, 526, 675 N.Y.S.2d 377).
The petitioners did not demonstrate a reasonable excuse for their failure to serve a timely notice of claim. The petitioners' assertion that they only recently discovered that they had a claim against the City is not an acceptable excuse ( see Matter of Abramovitz v. City of New York, 99 A.D.3d 1000, 1001, 953 N.Y.S.2d 137;Matter of Thompson v. City of New York, 95 A.D.3d 1024, 1025, 943 N.Y.S.2d 769;Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 405–406, 837 N.Y.S.2d 330), and they failed to submit any medical evidence to support their allegation that they were more concerned and preoccupied with their alleged injuries than in asserting a claim for damages ( see Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348;Matter of Aliberti v. City of Yonkers, 302 A.D.2d 456, 755 N.Y.S.2d 406;Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75).
The petitioners contend that the City acquired timely, actual knowledge of the essential facts constituting the claim by reason of a police accident report filled out by the responding police officer at the scene of the subject vehicular accident. The fact that the New York City Police Department had knowledge of this accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the City ( see Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 852–853, 946 N.Y.S.2d 220;Hardayal v. City of New York, 281 A.D.2d 593, 722 N.Y.S.2d 176;Matter of Leiblein v. Clark, 207 A.D.2d 348, 350, 615 N.Y.S.2d 437;Matter of Russ v. New York City Hous. Auth., 198 A.D.2d 361, 362, 603 N.Y.S.2d 338;Matter of Perry v. City of New York, 133 A.D.2d 692, 693, 519 N.Y.S.2d 862;Caselli v. City of New York, 105 A.D.2d 251, 255, 483 N.Y.S.2d 401). The petitioners' further assertion that the driver of the offending vehicle must have reported the accident to her superiors at the New York City Department of Transportation was completely unsubstantiated ( see Washington v. City of New York, 72 N.Y.2d 881, 883, 532 N.Y.S.2d 361, 528 N.E.2d 513;Matter of National Grange Mut. Ins. Co. v. Town of Eastchester, 48 A.D.3d 467, 468, 851 N.Y.S.2d 632;State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 828 N.Y.S.2d 416).
Furthermore, the petitioners failed to demonstrate that the 10–month delay in serving a notice of claim after the 90–day statutory period expired did not substantially prejudice the City in maintaining its defense on the merits ( see Brandi v. City of New York, 90 A.D.3d 751, 934 N.Y.S.2d 340;Matter of Hill v. New York City Tr. Auth., 68 A.D.3d 866, 867, 890 N.Y.S.2d 627;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218).
The petitioners' remaining contentions, which are based upon new factual allegations, are improperly raised for the first time on appeal and, accordingly, are not properly before this Court ( see Matter of Zaid v. City of New York, 87 A.D.3d 661, 663, 928 N.Y.S.2d 579;Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d 704, 706, 915 N.Y.S.2d 296;Provident Bank v. Giannasca, 55 A.D.3d 812, 866 N.Y.S.2d 289).