Finneran v. City of New York
| Decision Date | 17 June 1996 |
| Parties | In the Matter of Brian FINNERAN, Petitioner-Respondent, v. CITY OF NEW YORK, Respondent-Respondent, and New York City Housing Authority, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Smith, Mazure, Director, Wilkins, Young, Yagerman & Tarallo, P.C., New York City (Steven I. Brizel and Mark Yagerman, of counsel), for appellant.
Before SULLIVAN, J.P., and JOY, KRAUSMAN and McGINITY, 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 New York City Housing Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated February 9, 1995, as granted that branch of the petition which was for leave to serve a late notice of claim upon it and deemed the notice of claim served upon it.
ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and that branch of the petition which was for leave to serve a late notice of claim upon the New York City Housing Authority is denied.
The decision to grant or deny a petition for leave to serve a late notice of claim rests in the sound discretion of the Supreme Court upon consideration of the relevant factors enumerated in General Municipal Law § 50-e(5) (see, Matter of Guarneri v. Town of Oyster Bay, 224 A.D.2d 695, 638 N.Y.S.2d 711 [2d Dept., 1996]. The court improvidently exercised its discretion in granting the petition as against the appellant New York City Housing Authority (hereinafter the Housing Authority). The petitioner offered only a conclusory and unpersuasive excuse for failing to file a notice of claim until nearly two months beyond the expiration of the statutory period (see, Levette v. Triborough Bridge & Tunnel Auth., 207 A.D.2d 330, 615 N.Y.S.2d 421; Matter of McAllister v. County of Nassau, 202 A.D.2d 670, 609 N.Y.S.2d 294). The petitioner contends that his delay in filing a notice of claim in this case was due to the delay in obtaining a copy of a Housing Authority Police investigation report. However, this report was admittedly compiled shortly after the accident and the petitioner made no showing of when he first learned of its existence, when he first requested it, how long after his request it was received, or what difficulties, if any, were encountered in the procurement process. Similarly, he has failed to demonstrate that this proceeding was...
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