Brandi v. City of New York

Appellate Division of the Supreme Court of New York

Brandi v. City of New York

90 A.D.3d 751, 934 N.Y.2d 340

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

DecidedDecember 13, 2011

StatusPublished

Cited by8 cases

This text of 90 A.D.3d 751 (Brandi v. City of New York) 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

Brandi v. City of New York, 90 A.D.3d 751, 934 N.Y.2d 340 (N.Y. Ct. App. 2011).

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Opinion

“Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter; whether the delay would substantially prejudice the municipality in maintaining its defense; and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim” (Matter of Joy v County of Suffolk, 89 AD3d 1025, 1026 [2011]; see General Municipal Law § 50-e [5]). While the presence or the absence of any one of the factors is not necessarily determinative (see Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134 [2008]), whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Gonzalez v City of New York, 60 AD3d 1058, 1059 [2009]). The municipality must have notice or knowledge of the specific claim and not merely some general knowledge that a wrong has been committed (see Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2009]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr], 50 AD3d 830, 832 [2008]).

Here, the petitioner failed to demonstrate that the City of New York had actual notice of the essential facts constituting her claim (see Indar v City of New York, 71 AD3d 635, 636 [2010]). Moreover, she failed to put forward a reasonable excuse for her failure to file a timely notice of claim (see Matter of Padgett v City of New York, 78 AD3d 949, 950 [2010]). Finally, the petitioner failed to meet her burden of establishing that the delay would not substantially prejudice the City in maintaining its defense on the merits (see Matter of Padgett v City of New York, 78 AD3d at 950; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152 [2008]).

[752]*752Accordingly, the petition was properly denied. Rivera, J.E, Florio, Eng, Hall and Cohen, JJ., concur.

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“Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter; whether the delay would substantially prejudice the municipality in maintaining its defense; and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim” (Matter of Joy v County of Suffolk, 89 AD3d 1025, 1026 [2011]; see General Municipal Law § 50-e [5]). While the presence or the absence of any one of the factors is not necessarily determinative (see Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134 [2008]), whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Gonzalez v City of New York, 60 AD3d 1058, 1059 [2009]). The municipality must have notice or knowledge of the specific claim and not merely some general knowledge that a wrong has been committed (see Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2009]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr], 50 AD3d 830, 832 [2008]).

Here, the petitioner failed to demonstrate that the City of New York had actual notice of the essential facts constituting her claim (see Indar v City of New York, 71 AD3d 635, 636 [2010]). Moreover, she failed to put forward a reasonable excuse for her failure to file a timely notice of claim (see Matter of Padgett v City of New York, 78 AD3d 949, 950 [2010]). Finally, the petitioner failed to meet her burden of establishing that the delay would not substantially prejudice the City in maintaining its defense on the merits (see Matter of Padgett v City of New York, 78 AD3d at 950; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152 [2008]).

[752]*752Accordingly, the petition was properly denied. Rivera, J.E, Florio, Eng, Hall and Cohen, JJ., concur.

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Bluebook (online)

90 A.D.3d 751, 934 N.Y.2d 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandi-v-city-of-new-york-nyappdiv-2011.

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