Clark v. City of N.Y.

Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Joseph L. Decolator of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Antonella Karlin of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated January 23, 2015, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc and, in effect, dismissing the proceeding. The petitioner did not proffer any excuse for the delay of more than eight months in serving a notice of claim and in commencing this proceeding (see Matter of Anderson v. New York City Dept. of Educ., 102 A.D.3d 958, 959, 958 N.Y.S.2d 746 ; Troy v. Town of Hyde Park, 63 A.D.3d 913, 914, 882 N.Y.S.2d 159 ; Matter of Ryder v. Garden City School Dist., 277 A.D.2d 388, 716 N.Y.S.2d 97 ).

Furthermore, the petitioner failed to demonstrate that the respondent had actual knowledge of the essential facts negligent conduct (see Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ; Matter of Thompson v. City of New York, 95 A.D.3d 1024, 1025, 943 N.Y.S.2d 769 ; Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125 ). Moreover, a witness statement dated seven months after the incident and an undated aided report worksheet, both of which contained a description of the incident similar to what was contained in the line-of-duty injury report, did not provide actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Matter of Valila v. Town of Hempstead, 107 A.D.3d 813, 815, 968 N.Y.S.2d 100 ).

In addition, the petitioner failed to rebut the respondent's assertion that the eight-month delay substantially prejudiced its ability to investigate and defend against the claim (see Matter of Catuosco v. City of New York, 62 A.D.3d 995, 997, 880 N.Y.S.2d 142 ; Matter of Pico v. City of New York, 8 A.D.3d 287, 288, 777 N.Y.S.2d 697 ; Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 867, 769 N.Y.S.2d 596 ).