Diaz v. City of New York
| Decision Date | 30 January 1995 |
| Citation | 622 N.Y.S.2d 102,211 A.D.2d 789 |
| Parties | In the Matter of Cassandra DIAZ, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert G. Spevack, New York City (Susan R. Nudelman, of counsel), for appellants.
Paul A. Crotty, Corp. Counsel, New York City (Kristin M. Helmers of counsel; Jonathan T. Kweller, on the brief), for respondents.
Before MILLER, J.P., and LAWRENCE, RITTER and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioners appeal from (1) an order of the Supreme Court, Kings County (Bernstein, J.), dated October 18, 1991, which denied their application for leave to serve a late notice of claim, and (2) an order of the same court, dated September 2, 1993, which denied their motion, denominated as one to renew and reargue, which was, in effect, for reargument.
ORDERED that the respondents are awarded one bill of costs.
That branch of the petitioners' motion which was to renew was based upon facts that could have been raised at the time of the original motion, and the petitioners offered no excuse for their failure to present the evidence at that time. Therefore, the petitioners' motion, denominated as a motion to renew and reargue, was, in actuality, only a motion to reargue, the denial of which is not appealable (see, Bartolo v. South Nassau Communities Hosp., 198 A.D.2d 204, 604 N.Y.S.2d 787).
A notice of claim against a municipality must be served within 90 days after the claim arises (General Municipal Law § 50-e[1][a]. However, a court, in its discretion, may grant a petitioner leave to serve a late notice of claim, "keeping in mind that it must strike an 'equitable balance * * * between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation' " (Matter of Reisse v. County of Nassau, 141 A.D.2d 649, 650, 529 N.Y.S.2d 371, quoting Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142-143, 356 N.Y.S.2d 553, 313 N.E.2d 29). In determining whether to grant leave to serve a late notice of claim, the court must consider ...
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