Baxter Smith & Shapiro, P.C., West Seneca (Joshua Bloom of Counsel), for Respondent–Appellant.
Viola, Cummings & Lindsay, LLP, Niagara Falls (Matthew T. Mosher of Counsel), for Claimant–Respondent.
PRESENT: SMITH, J.P., CENTRA, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM:
Supreme Court abused its discretion in granting claimant's application for leave to serve a late notice of claim almost three years and eight months after the accident in question occurred. “ In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” (
Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407,
895 N.Y.S.2d 895 ). Claimant's excuse that she was “unaware of the severity
of [her daughter's] injury is unavailing without supporting medical evidence explaining why the possible permanent effects of the injury took so long to become apparent and be diagnosed” (
Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d 138, 151,
851 N.Y.S.2d 218 ). Thus, claimant's affidavit, without more, is insufficient to demonstrate a reasonable excuse for her failure to serve a timely notice of claim (
see
id. at 150–151,
851 N.Y.S.2d 218 ). Further, claimant failed to establish that respondent had actual knowledge of the essential facts constituting the claim within the requisite time period (
see
Folmar v. Lewiston–Porter Cent. Sch. Dist., 85 A.D.3d 1644, 1645,
925 N.Y.S.2d 730 ). “Respondent's knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim” (
id. [internal quotation marks omitted];
see
Le Mieux v. Alden High Sch., 1 A.D.3d 995, 996,
767 N.Y.S.2d 348 ). Finally, respondent was substantially prejudiced by the delay because it could not promptly obtain witness statements and a medical examination of claimant's daughter, which is particularly significant in light of the evidence that there was no serious injury apparent immediately after the incident (
see generally
Friend, 71 A.D.3d at 1407,
895 N.Y.S.2d 895 ;
Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1305,
770 N.Y.S.2d 258,
lv. denied
2 N.Y.3d 704,
778 N.Y.S.2d 774,
811 N.E.2d 36 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed
on the law without costs and the application is denied.