Opinion
June 22, 1989
Appeal from the Supreme Court, Albany County (Hughes, J.).
Petitioner was injured on September 29, 1987 at his place of employment, Sysco Frosted Foods, Inc., when a valve upon a refrigeration unit failed, causing the escape of toxic gas. The real property upon which the Sysco facility is located is owned by respondent Colonie Industrial Development Agency (hereinafter the IDA), a public authority established by General Municipal Law § 911-d. Petitioner first consulted with an attorney about the accident on November 13, 1987. On November 24, 1987, petitioner's attorney commissioned an abstract of title to determine ownership of the premises but, having received no result by February 1988, searched the land records of the Albany County Clerk's office himself during the second week of February 1988 and discovered the IDA's ownership of the property. On March 18, 1988, the IDA was served with papers in support of this application for leave to serve a late notice of claim (see, General Municipal Law § 50-e). Supreme Court denied the application; petitioner appeals.
We affirm. Initially, we agree with Supreme Court that petitioner failed to satisfy his burden of establishing that the IDA acquired actual knowledge of the essential facts constituting his claim against it within the 90 days following the accident or within a reasonable time thereafter (see, General Municipal Law § 50-e; Matter of Andrews v. Village of Sherburne, 140 A.D.2d 790, 791, lv denied 72 N.Y.2d 807) and we recognize that this is a factor which should be accorded great weight (see, Matter of Morris v. County of Suffolk, 88 A.D.2d 956, affd 58 N.Y.2d 767). The assertion in the attorney's affidavit in support of the application that prior notice was afforded by news accounts of the accident or investigations by the Police Department of the Town of Colonie, Albany County, and the Occupational Safety and Health Administration of the United States Department of Labor is entirely speculative and denied by the IDA.
Next, contrary to petitioner's argument, we find that it took petitioner's attorney an inordinate period of time to ascertain the identity of the owner of the property upon which the accident occurred. Moreover, even crediting the claim that there was nothing to readily indicate that a public corporation was involved (see, Baldeo v. City of New York, 127 A.D.2d 809), the fact remains that another five weeks elapsed from the time of discovery of the IDA's involvement to service of the papers in support of the application. Thus, Supreme Court was justified in concluding that petitioner had failed to proffer an adequate excuse for the late filing (see, Matter of Morris v County of Suffolk, supra).
Finally, there is some question as to the effect of the delay upon the ability of the IDA to fully investigate the accident and prepare a defense. Although it is true that Federal officials performed an in-depth investigation of the accident, their focus was on the employer's conduct, particularly its failure to utilize appropriate safety equipment, and not on a breach of any duty of care by the IDA. In any event, lack of prejudice is not of itself determinative (see, Matter of Andrews v. Village of Sherburne, supra, at 792), but is only one factor to be considered (see, Matter of Katz v. Rockville Centre Union Free School Dist., 131 A.D.2d 574, 575-576, lv denied 71 N.Y.2d 801). In our view, under the circumstances presented, Supreme Court did not abuse its broad discretion in refusing to permit the late filing of a notice of claim (see, Benjamin v. County of Warren, 128 A.D.2d 973, 974, lv denied 71 N.Y.2d 806; Hamm v. Memorial Hosp., 99 A.D.2d 638).
Order affirmed, without costs. Kane, J.P., Weiss, Mikoll, Levine and Mercure, JJ., concur.