Dardzinska v. City of New York

Appellate Division of the Supreme Court of New York

Dardzinska v. City of New York

123 A.D.3d 483, 998 N.Y.S.2d 358

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

DecidedDecember 9, 2014

Docket13718N 159313/13

StatusPublished

Cited by1 cases

This text of 123 A.D.3d 483 (Dardzinska 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.

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Dardzinska v. City of New York, 123 A.D.3d 483, 998 N.Y.S.2d 358 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Kathryn Freed, J.), entered February 14, 2014, which granted petitioner’s application for leave to file a late notice of claim upon respondents, unanimously reversed, on the law and the facts, without costs, the application denied, and the petition dismissed.

While no one factor is controlling, here petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal Law § 50-e [5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824 [2010]). Petitioner failed to make an adequate showing, via medical or other evidence, that her claimed injuries prevented her from timely filing a notice of claim (see Matter of Rivera v New York City Hous. Auth., 25 AD3d 450 [1st Dept 2006]). That this is true is underscored by the fact that she was able to file a report with her employer within 90 days of her accident (see Matter of Casale v City of New York, 95 AD3d 744 [1st Dept 2012]).

It is undisputed that respondents did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service (id.; Matter of Rivera, 25 AD3d at 451).

Concur — Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman and Gische, JJ.

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Order, Supreme Court, New York County (Kathryn Freed, J.), entered February 14, 2014, which granted petitioner’s application for leave to file a late notice of claim upon respondents, unanimously reversed, on the law and the facts, without costs, the application denied, and the petition dismissed.

While no one factor is controlling, here petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal Law § 50-e [5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824 [2010]). Petitioner failed to make an adequate showing, via medical or other evidence, that her claimed injuries prevented her from timely filing a notice of claim (see Matter of Rivera v New York City Hous. Auth., 25 AD3d 450 [1st Dept 2006]). That this is true is underscored by the fact that she was able to file a report with her employer within 90 days of her accident (see Matter of Casale v City of New York, 95 AD3d 744 [1st Dept 2012]).

It is undisputed that respondents did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service (id.; Matter of Rivera, 25 AD3d at 451).

Concur — Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman and Gische, JJ.

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123 A.D.3d 483, 998 N.Y.S.2d 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dardzinska-v-city-of-new-york-nyappdiv-2014.

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