Avalos v. City of New York Board of Education

Appellate Division of the Supreme Court of New York

Avalos v. City of New York Board of Education

67 A.D.3d 675, 886 N.Y.S.2d 910

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 2009

StatusPublished

Cited by12 cases

This text of 67 A.D.3d 675 (Avalos v. City of New York Board of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avalos v. City of New York Board of Education, 67 A.D.3d 675, 886 N.Y.S.2d 910 (N.Y. Ct. App. 2009).

Pincite

Opinion

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated August 14, 2008, as denied the petition.

Ordered that the order is affirmed insofar as appealed from, with costs.

In determining whether to grant leave to serve a late notice of claim, the court must consider, among other things, whether (1) there is a reasonable excuse for the delay, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the claim’s accrual or a reasonable time thereafter, and (3) the delay in serving the no[676]*676tice of claim would result in substantial prejudice to the public corporation defending on the merits (see General Municipal Law § 50-e [5]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-153 [2008]). Here, the petitioners failed to present a reasonable excuse for failing to serve a timely notice of claim (see Matter of Tineo v City of New York, 273 AD2d 397 [2000]; Matter of Jackson v City of New Rochelle, 227 AD2d 483 [1996]). In addition, the petitioners failed to demonstrate that the respondent had actual notice of the essential facts constituting their claim within 90 days of their claim’s accrual or a reasonable time thereafter (see Matter of Dunlea v Mahopac Cent. School Dist, 232 AD 2d 558, 559-560 [1996]). Finally, the petitioners failed to establish that the delay in serving the notice of claim would not result in substantial prejudice to the respondent defending on the merits (id. at 559-560). Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim. Fisher, J.P., Covello, Dickerson and Lott, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated August 14, 2008, as denied the petition.

Ordered that the order is affirmed insofar as appealed from, with costs.

In determining whether to grant leave to serve a late notice of claim, the court must consider, among other things, whether (1) there is a reasonable excuse for the delay, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the claim’s accrual or a reasonable time thereafter, and (3) the delay in serving the no[676]*676tice of claim would result in substantial prejudice to the public corporation defending on the merits (see General Municipal Law § 50-e [5]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-153 [2008]). Here, the petitioners failed to present a reasonable excuse for failing to serve a timely notice of claim (see Matter of Tineo v City of New York, 273 AD2d 397 [2000]; Matter of Jackson v City of New Rochelle, 227 AD2d 483 [1996]). In addition, the petitioners failed to demonstrate that the respondent had actual notice of the essential facts constituting their claim within 90 days of their claim’s accrual or a reasonable time thereafter (see Matter of Dunlea v Mahopac Cent. School Dist, 232 AD 2d 558, 559-560 [1996]). Finally, the petitioners failed to establish that the delay in serving the notice of claim would not result in substantial prejudice to the respondent defending on the merits (id. at 559-560). Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim. Fisher, J.P., Covello, Dickerson and Lott, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

67 A.D.3d 675, 886 N.Y.S.2d 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avalos-v-city-of-new-york-board-of-education-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack