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Pecchio v. National Safety Environmental

Appellate Division of the Supreme Court of New York, Second Department
Jan 30, 1995
211 A.D.2d 773 (N.Y. App. Div. 1995)

Opinion

January 30, 1995

Appeal from the Supreme Court, Kings County (Hutcherson, J.).


Ordered that the order is affirmed, with costs.

In deciding an application for leave to serve a late notice of claim, the court must consider, inter alia, whether the plaintiff has demonstrated a reasonable excuse for the delay, whether the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the municipal entity's opportunity to investigate and defend against the claim was substantially prejudiced by the delay (see, Public Authorities Law § 1744; General Municipal Law § 50-e; Matter of Perry v. City of New York, 133 A.D.2d 692). In the present case, the plaintiff contends that his delay in seeking leave to serve a late notice of claim upon the New York City School Construction Authority (hereinafter the SCA) is excusable because he and his counsel were unaware of the existence of the SCA and instead served a notice of claim upon the New York City Board of Education. Assuming, arguendo, that the plaintiff's confusion regarding the identity of the proper entity to sue constitutes an acceptable excuse for the delay (see generally, General Municipal Law § 50-e; Matter of Shelden v. New York City Hous. Auth., 180 A.D.2d 551; Baldeo v. City of New York, 127 A.D.2d 809), the plaintiff nevertheless failed to demonstrate that the SCA had acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the claim arose (see, e.g., Matter of Tricomi v. New York City Hous. Auth., 191 A.D.2d 447; Matter of D'Andrea v. City of Glen Cove Pub. Schools, 143 A.D.2d 747). We note that the plaintiff's conclusory and speculative assertion that the New York City Board of Education probably shared its actual knowledge of the claim with the SCA is inadequate for this purpose. Furthermore, it appears that the SCA would be substantially prejudiced if late service of the notice of claim were to be permitted. Accordingly, we discern no improvident exercise of discretion in the Supreme Court's denial of the plaintiff's application. Sullivan, J.P., Thompson, Copertino and Pizzuto, JJ., concur.


Summaries of

Pecchio v. National Safety Environmental

Appellate Division of the Supreme Court of New York, Second Department
Jan 30, 1995
211 A.D.2d 773 (N.Y. App. Div. 1995)
Case details for

Pecchio v. National Safety Environmental

Case Details

Full title:MICHAEL PECCHIO, Appellant, v. NATIONAL SAFETY ENVIRONMENTAL et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 30, 1995

Citations

211 A.D.2d 773 (N.Y. App. Div. 1995)
621 N.Y.S.2d 665

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