Opinion
2014-05984, 2014-11957, Index No. 22994/13.
10-28-2015
In the Matter of Trevian MORRIS, appellant, v. CITY OF NEW YORK, et al., respondents.
Ross & Hill, Brooklyn, N.Y. (James F. Ross of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Tahirih M. Sadrieh of counsel), for respondents.
Ross & Hill, Brooklyn, N.Y. (James F. Ross of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Tahirih M. Sadrieh of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, 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 (1) an order of the Supreme Court, Queens County (Kerrigan, J.), entered March 21, 2014, which denied the petition, and (2) an order of the same court entered November 20, 2014, which denied her motion for leave to renew the petition.
ORDERED that the orders are affirmed, with one bill of costs payable to the respondents. In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) 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, and (3) the delay would substantially prejudice the public corporation in its defense (see General Municipal Law § 50–e[5] ; Matter of Whittaker v. New York City Bd. of Educ., 71 A.D.3d 776, 777, 896 N.Y.S.2d 171 ; Matter of Leeds v. Port Wash. Union Free School Dist., 55 A.D.3d 734, 865 N.Y.S.2d 349 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ).
The petitioner's delay in serving the notice of claim was the result of law office failure, which is not an acceptable excuse for the failure to timely comply with the provisions of General Municipal Law § 50–e (see Matter of Guminiak v. City of Mount Vernon Indus. Dev. Agency, 68 A.D.3d 1111, 891 N.Y.S.2d 469 ; Matter of Smith v. Baldwin Union Free School Dist., 63 A.D.3d 1078, 1079, 881 N.Y.S.2d 488 ; Matter of Roland v. Nassau County Dept. of Social Servs., 35 A.D.3d 477, 478, 828 N.Y.S.2d 94 ).
Furthermore, the petitioner failed to establish that the City of New York acquired timely, actual knowledge of the essential facts constituting the petitioner's claim. The police accident report, made by a police officer at the scene of the accident, did not provide the City with actual notice of the petitioner's claim that she was injured as a result of the City's negligence (see Matter of Thompson v. City of New York, 95 A.D.3d 1024, 1025, 943 N.Y.S.2d 769 ; Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348 ; Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125 ). Claim letters that the petitioner allegedly sent to the New York City Department of Health and Mental Hygiene and one of its employees about one month after the accident were submitted by the petitioner for the first time in her reply papers, and, thus, were not properly before the Supreme Court (see DiLapi v. Saw Mill Riv., LLC, 122 A.D.3d 896, 900, 998 N.Y.S.2d 60 ; Matell Contr. Co., Inc. v. Fleetwood Park Dev., LLC, 111 A.D.3d 681, 683, 974 N.Y.S.2d 573 ; Malanga v. Chamberlain, 71 A.D.3d 644, 646, 896 N.Y.S.2d 385 ). Moreover, the petitioner failed to demonstrate that the delay of approximately four months after the expiration of the 90–day statutory deadline for serving a notice of claim would not substantially prejudice the City in maintaining its defense on the merits (see Iglesias v.
Brentwood Union Free Sch. Dist., 118 A.D.3d 785, 786, 987 N.Y.S.2d 195 ; Brandi v. City of New York, 90 A.D.3d 751, 934 N.Y.S.2d 340 ; Moran v. New York City Hous. Auth., 224 A.D.2d 257, 258, 637 N.Y.S.2d 698 ). Accordingly, the court providently exercised its discretion in denying the petition.
In addition, the Supreme Court properly denied the petitioner's subsequent motion for leave to renew her petition. In support of her motion, the petitioner proffered evidence that two passengers of the vehicle which she was operating at the time of the accident had commenced actions against the City to recover damages for personal injuries sustained in the same accident. The petitioner did not offer a reasonable justification for failing to present this evidence with her original submissions supporting her petition (see CPLR 2221[e][3] ; Rose v. Levine, 98 A.D.3d 1015, 1016, 951 N.Y.S.2d 880 ). Her attorney's contention that he believed that the evidence originally submitted in support of the petition was sufficient did not constitute reasonable justification (see Brown Bark I, L.P. v. Imperial Dev. & Constr. Corp., 65 A.D.3d 510, 512, 882 N.Y.S.2d 919 ; Zarecki & Assoc., LLC v. Ross, 50 A.D.3d 679, 680, 854 N.Y.S.2d 527 ; Reshevsky v. United Water N.Y., Inc., 46 A.D.3d 532, 533, 846 N.Y.S.2d 616 ). In any event, the new evidence did not include the notices of claim served in connection with the related personal injury actions to establish that the City had timely, actual knowledge of the petitioner's claim of negligence by the City and her resulting injuries (see Olivera v. City of New York, 270 A.D.2d 5, 5–6, 704 N.Y.S.2d 42 ; Matter of Mangona v. Village of Greenwich, 252 A.D.2d 732, 733, 675 N.Y.S.2d 401 ; Rudd v. Andrews, 199 A.D.2d 772, 773, 605 N.Y.S.2d 424 ).