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In the Matter of HENRY VITALI et al., Appellants, v. CITY OF NEW YORK, Respondent.

Ordered that the judgment is affirmed, with costs.

The court did not act improvidently in denying the petitioners' application for leave to serve a late notice of claim. Not only did the petitioners fail to proffer a satisfactory explanation for the delay in seeking leave to serve a late notice of claim (see, Matter of Piotrowski v. Onteora Cent. School Dist., 161 A.D.2d 990; Matter of Perry v. City of New York, 133 A.D.2d 692), but there is also no evidence that the City had actual knowledge of the petitioners' claim within the time within which they had to serve a notice of claim or within a reasonable time thereafter (see, Matter of Blackwell v. City of New York, 156 A.D.2d 684).

The mere fact that New York City Fire Department and New York Emergency Medical Service personnel were at the scene of the accident is insufficient to impute the requisite knowledge to the City (see, Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, affd 78 N.Y.2d 958). Moreover, due to the manner in which the alleged accident occurred, it is clear that the changes in the condition of the premises with the passage of time "would prevent an accurate reconstruction of the circumstances existing at the time the accident occurred" (Matter of Perry v. City of New York, supra, at 693; see also, Pantelup v. City of New York, 176 A.D.2d 932). Sullivan, J.P., Balletta, Altman and Friedmann, JJ., concur.

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MATTER OF VITALI v. CITY OF NEW YORK
(Jun 13, 1994)