Romeo v. Long Island Power Auth.

Sullivan Papain Block McGarth & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Susan M. Jaffe of counsel), for appellants.

Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. (David Lazer and Zachary Murdock of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Nassau County (Diamond, J.), dated October 2, 2013, which denied the petition.

ORDERED that the order is affirmed, with costs.

123 In determining whether leave to serve a late notice of claim should be granted, a court must consider all relevant circumstances, including (1) whether the claimant demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (3) whether the delay would substantially prejudice the public corporation in maintaining a defense on the merits (see General Municipal Law § 50–e[5]; Matter of Barrett v. Village of Wappingers Falls, 130 A.D.3d 817, 12 N.Y.S.3d 577; Matter of Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d 870, 872, 6 N.Y.S.3d 294; Matter of Stark v. West Hempstead Union Free Sch. Dist., 127 A.D.3d 765, 7 N.Y.S.3d 216; Matter of Murray v. Village of Malverne, 118 A.D.3d 798, 799, 987 N.Y.S.2d 229). “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 Iacone v. Town of Hempstead, 82 A.D.3d 888, 888–889, 918 N.Y.S.2d 202; see Matter of Barrett v. Village of Wappingers Falls, 130 A.D.3d at 817, 12 N.Y.S.3d 577). The determination of whether to grant leave to serve a late notice of claim is left to the sound discretion of the court (see Matter of Barrett v. Village of Wappingers Falls, 130 A.D.3d at 817, 12 N.Y.S.3d 577; Matter of Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d at 872, 6 N.Y.S.3d 294; Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 622, 826 N.Y.S.2d 648).

45 Generally, the phrase “facts constituting the claim” is understood to mean the facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation (see Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64; Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125). Here, the petitioners failed to demonstrate that the respondent had actual knowledge of the essential facts constituting their claim and not merely some general knowledge that a wrong had been committed (see Matter of Brandi v. City of

New York, 90 A.D.3d 751, 934 N.Y.S.2d 340; Matter of Zaid v. City of New York, 87 A.D.3d 661, 663, 928 N.Y.S.2d 579; Matter of Iacone v. Town of Hempstead, 82 A.D.3d at 889, 918 N.Y.S.2d 202; Matter of Wright v. City of New York, 66 A.D.3d at 1038, 888 N.Y.S.2d 125).

6

Moreover, the petitioners failed to demonstrate a reasonable excuse for their failure to serve a timely notice of claim upon the respondent. The petitioners' ignorance of the law does not constitute a reasonable excuse (see Matter of Bhargava v. City of New York, 130 A.D.3d 819, 13 N.Y.S.3d 552; Matter of Barrett v. Village of Wappingers Falls, 130 A.D.3d at 817, 12 N.Y.S.3d 577; Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 791, 980 N.Y.S.2d 132), and their other proffered excuses were vague and conclusory.

7 The petitioners also failed to establish that the delay in serving a notice of claim would not substantially prejudice the respondent's ability to maintain its defense on the merits (see Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d at 792, 980 N.Y.S.2d 132; Matter of Destine v. City of New York, 111 A.D.3d 629, 974 N.Y.S.2d 123; Godfrey v. City of New Rochelle, 74 A.D.3d 1018, 1019, 903 N.Y.S.2d 497).

Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim.