Rosenblatt v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: Rosenblatt v. City of New York, 633 N.Y.S.2d 557, 221 A.D.2d 448 (N.Y. App. Div. 1995)
• Decision Date: 13 November 1995
• Parties: In the Matter of Robin ROSENBLATT, Respondent, et al., Petitioner, v. CITY OF NEW YORK, Appellant.

Page 557

633 N.Y.S.2d 557

221 A.D.2d 448

In the Matter of Robin ROSENBLATT, Respondent, et al., Petitioner, v. CITY OF NEW YORK, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 13, 1995.

Paul A. Crotty, Corporation Counsel, New York City (Pamela Seider Dolgow and Jane S. Earle, of counsel), for appellant.

Bernstein & Bernstein, New York City (Anthony J. McNulty, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, ALTMAN and FLORIO, 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 City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Greenstein, J.), entered April 20, 1994, as granted the application on behalf of the petitioner Robin Rosenblatt.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the application on behalf of the petitioner Robin Rosenblatt is denied.

On December 29, 1992, the petitioner Robin Rosenblatt allegedly sustained physical injuries when the automobile which she was operating collided with a New York City Sanitation truck in Queens. The instant application for leave to serve a late notice of claim was made on or about January 24, 1994. In support of the application, counsel for the petitioner submitted a two-page affirmation in which he conclusorily blamed an unelaborated "clerical error" for his failure to file a timely notice of claim. Counsel also averred that the City was not prejudiced by the delay since it had actual and constructive notice of the accident as a result of a report filed by the driver of the sanitation truck. The Supreme Court granted the application on behalf of the petitioner Robin Rosenblatt. We now reverse.

Inasmuch as the application for leave to serve a late notice of claim was made within one year and 90 days of the date on which the claim arose, the court possessed the discretion to entertain the application (see, General Municipal Law § 50-e[5]; Matter of Sanders v. New York City Hous. Auth., 170 A.D.2d 607, 566 N.Y.S.2d 381; cf., Carr v. City of New York, 176 A.D.2d 779, 575 N.Y.S.2d 107). However, the court improvidently exercised its discretion in this case. Counsel's vague and unelaborated reference to a "clerical error" was patently inadequate to constitute a reasonable excuse for the delay in filing the notice of claim (see, Seif v. City of New York, 218 A.D.2d 595, 630 N.Y.S.2d 742; Lamper v. City of New York, 215 A.D.2d 484, 626 N.Y.S.2d 253; Burns v. New York City Tr. Auth., 213 A.D.2d 300, 624 N.Y.S.2d 30; Matter of O'Mara v. Town of Cortlandt, 210 A.D.2d 337, 620 N.Y.S.2d 82; Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 554 N.Y.S.2d 859, affd. 78 N.Y.2d 958, ...