Siena v. Marlboro Houses
| Decision Date | 14 December 1992 |
| Citation | 188 A.D.2d 534,591 N.Y.S.2d 199 |
| Parties | In the Matter of John SIENA, Respondent, v. MARLBORO HOUSES, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Levenson Pressman, New York City (Laura Alto and Mark Levenson, of counsel), for appellants.
Anne Owens Gilde, Brooklyn, for respondent.
Before THOMPSON, J.P., and BALLETTA, EIBER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for leave to serve late notices of claim, the appeal is from an order of the Supreme Court, Kings County (Spodek, J.), dated August 24, 1990, which granted the application.
ORDERED that the order is reversed, as a matter of discretion, with costs, and the application is denied.
On August 27, 1989, the petitioner was robbed and thrown down the stairs by unknown assailants inside the building in which he resided and which was owned and operated by the appellants. On April 1, 1990, the petitioner's apartment was burglarized. In July 1990, the petitioner applied for leave to serve late notices of claim with respect to the two incidents. The Supreme Court, Kings County, granted the application. We now reverse.
The petitioner failed to provide a reasonable excuse for his failure to timely serve the notices of claim. While "the absence of an acceptable excuse for the delay is not necessarily fatal to the application" (see, Montalto v. Town of Harrison, 151 A.D.2d 652, 653, 543 N.Y.S.2d 97; Matter of Chatman v. White Plains Hous. Auth., 101 A.D.2d 838, 839, 475 N.Y.S.2d 500), where, as here, there is also a failure to establish that the appellants had actual knowledge of the facts within 90-day period, the application should be denied (see, Pantelup v. City of New York, 176 A.D.2d 932, 575 N.Y.S.2d 371; Matter of Perry v. City of New York, 133 A.D.2d 692, 519 N.Y.S.2d 862; Matter of Cali v. County of Suffolk, 132 A.D.2d 555, 517 N.Y.S.2d 548).
The petitioner's assertion that the police reports of the two incidents indicate that the appellants had actual knowledge of the facts is without merit. A police report dated August 27, 1989, merely indicates that the petitioner was robbed and pushed down the stairs, and a police report for the April 1, 1990, incident merely indicates that the petitioner's apartment was burglarized on April 1, 1990. In neither instance does the police report connect the incident with any negligence on the part of the appellants. Certain Civil Court documents submitted by the petitioner suffer from the...
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