Morrison v. New York City Health & Hospitals Corp.

• Decision Date: 17 November 1997
• Parties: , 1997 N.Y. Slip Op. 9649 In the Matter of Samuel MORRISON, Appellant, et al., Petitioner, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 342

664 N.Y.S.2d 342

244 A.D.2d 487, 1997 N.Y. Slip Op. 9649

In the Matter of Samuel MORRISON, Appellant, et al., Petitioner, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Nov. 17, 1997.

David Scheinfeld, New York City (Robert Cini and Geoffrey Berger, of counsel), for appellant.

Jeffrey D. Friedlander, Acting Corporation Counsel, New York City (Kristin M. Helmers and Deborah R. Douglas, of counsel), for respondents.

Before SULLIVAN, J.P., and FRIEDMANN, FLORIO 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 petitioner Samuel Morrison appeals from an order of the Supreme Court, Queens County (Price, J.), dated September 18, 1996, which denied the application.

ORDERED that the order is affirmed, with costs.

"The key factors in determining whether leave to [serve] a late notice of claim should be granted are whether the [petitioner] has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e[1] ) or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits" (Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 606, 622 N.Y.S.2d 547; Pecchio v. National Safety Envtl., 211 A.D.2d 773, 774, 621 N.Y.S.2d 665; Matter of O'Mara v. Town of Cortlandt, 210 A.D.2d 337, 338, 620 N.Y.S.2d 82; Shapiro v. County of Nassau, 208 A.D.2d 545, 616 N.Y.S.2d 786).

The appellant has failed to proffer a reasonable excuse for the almost one-year delay in seeking permission to serve a late notice of claim (see, Rudisel v. City of New York, 217 A.D.2d 702, 630 N.Y.S.2d 259). The appellant has also failed to demonstrate that the respondents acquired actual knowledge of the essential facts constituting the claim within the statutory 90-day period. The appellant's contention that actual knowledge of the facts was provided to the respondents on the day of the alleged accident by way of Elmhurst Hospital employees who assisted the appellant at the time of the accident and by emergency room records that only showed that he was injured without any other information is insufficient to impute actual knowledge of the essential facts underlying the claim.

Even if employees of the respondents were present at the accident site at the time of a petitioner's accident, as was allegedly the case herein, such would not...