Deegan v. City of New York
| Decision Date | 28 May 1996 |
| Citation | 643 N.Y.S.2d 596,227 A.D.2d 620 |
| Parties | In the Matter of Francis J. DEEGAN, et al., Respondents, v. CITY OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul A. Crotty, Corporation Counsel, New York City (Larry A. Sonnenshein and Kathleen Alberton, of counsel), for appellant.
Rich & Rich, P.C., New York City (Jeffrey M. Rich, of counsel), for respondents.
Before RITTER, J.P., and PIZZUTO, SANTUCCI and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Richmond County (Amann, J.), dated December 9, 1994, which granted the petitioners' application.
ORDERED that the order is reversed, as a matter of discretion, with costs, and the petition is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petitioners' application for leave to serve a late notice of claim. The key factors to be considered in adjudicating a petition of this nature are: (1) whether the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, General Municipal Law § 50-e[1][a], [5]; Matter of Sosa v. City of New York, 206 A.D.2d 374, 375, 614 N.Y.S.2d 50).
Under the circumstances of this case, the claim of law office failure by the petitioners' former attorney does not constitute a reasonable excuse for failing to timely serve a notice of claim (see, Matter of Serrano v. New York City Housing Auth., 197 A.D.2d 694, 696, 602 N.Y.S.2d 935). In addition, the police reports which had been compiled in the aftermath of the subject incident did not provide the City with actual notice of the essential facts constituting the petitioners' claim. These reports merely described the circumstances attendant to the incident and made no connection between the incident and the allegedly negligent conduct of the New York City Department of Environmental Protection (see, Fox v. City of New York, 91 A.D.2d 624, 456 N.Y.S.2d 806; see also, Matter of Zbryski v. City of New York, 147 A.D.2d 705, 538 N.Y.S.2d 315; Matter of Mallory v. City of New York, 135 A.D.2d 636, 522...
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