Cresci v. New York City Industrial Development Agency

279 A.D.2d 497, 718 N.Y.S.2d 873, 2001 N.Y. App. Div. LEXIS 389

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2001
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated August 13, 1999, which granted the respondent’s motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The factors to be considered in deciding if leave to serve a late notice of claim should be granted are whether the movant demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the municipality’s opportunity to investigate and defend against the claim was substantially prejudiced by the delay (see, James v City of New York, 242 AD2d 630). Based upon a consideration of these factors, we conclude that the Supreme Court properly exercised its discretion in not allowing the service of a late notice of claim and granting the respondent’s motion to dismiss the complaint insofar as asserted against it. S. Miller, J. P., McGinity, Luciano and Smith, JJ., concur.