Opinion
2015-06009, Index No. 17033/14.
05-11-2016
In the Matter of Iala MOHAMED, appellant, v. NEW YORK CITY, respondent.
Manuel D. Gomez & Associates, P.C., New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for respondent.
Manuel D. Gomez & Associates, P.C., New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
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 (Baynes, J.), dated April 23, 2015, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
“In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant 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” (Matter of Mitchell v. City of New York, 112 A.D.3d 940, 940, 977 N.Y.S.2d 368 ; see Matter of Lawhorne v. City of New York, 133 A.D.3d 856, 20 N.Y.S.3d 155 ). “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” (Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 [citation omitted]; see Matter of Barrett v. Village of Wappingers Falls, 130 A.D.3d 817, 12 N.Y.S.3d 577 ; General Municipal Law § 50–e[5] ). Here, the petitioner failed to establish a reasonable excuse for his failure to serve a timely notice of claim (see Matter of Bush v. City of New York, 76 A.D.3d 628, 629, 906 N.Y.S.2d 597 ; Matter of Catuosco v. City of New York, 62 A.D.3d 995, 997, 880 N.Y.S.2d 142 ; Astree v. New York City Tr. Auth., 31 A.D.3d 589, 590, 819 N.Y.S.2d 281 ; see also Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623–624, 826 N.Y.S.2d 648 ). The petitioner also failed to establish that the respondent had actual knowledge of the facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Matter of Anderson v. Town of Oyster Bay, 101 A.D.3d 708, 709, 955 N.Y.S.2d 183 ; Matter of Peterson v. New York City Dept. of Envtl. Protection, 66 A.D.3d 1027, 1030, 887 N.Y.S.2d 269 ). Furthermore, the petitioner failed to establish that his delay in seeking leave to serve a notice of claim would not substantially prejudice the respondent in defending the claim on the merits (see Matter of Minkowicz v. City of New York, 100 A.D.3d 1000, 1000–1001, 954 N.Y.S.2d 628 ; Matter of Wright v. City of New York, 99 A.D.3d 717, 719, 951 N.Y.S.2d 750 ). Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.
This Court has not considered the new evidence proffered by the petitioner for the first time on appeal. “[A]ppellate review is limited to the record made at the nisi prius court and, absent matters which may be judicially noticed, new facts may not be injected at the appellate level” (Block v. Magee, 146 A.D.2d 730, 732, 537 N.Y.S.2d 215 ; see Poveromo v. Kelley–Amerit Fleet Servs., Inc., 127 A.D.3d 1048, 1049, 5 N.Y.S.3d 885 ).