Robertson v. New York City Housing Authority

237 A.D.2d 501, 655 N.Y.S.2d 572, 1997 N.Y. App. Div. LEXIS 2832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1997
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Ramirez, J.), entered June 21, 1995, which granted the plaintiffs’ motion to renew and reargue their prior motion to serve a late notice of claim, and upon reargument, granted the motion for leave to serve a late notice of claim. Justice Florio has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is reversed, on the law, with costs, and the motion to renew and reargue is denied.

In deciding whether to grant or deny a motion for leave to serve a late notice of claim, the court must consider whether the petitioner has demonstrated a reasonable excuse for his or her failure to serve a timely notice of claim, whether the municipality to be served acquired actual knowledge of the essential facts constituting the claim within the 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, Levette v Triborough Bridge & Tunnel Auth., 207 AD2d 330; Matter of Townsend v New York City Hous. Auth., 194 AD2d 795).

’ The plaintiffs contend that the injured plaintiff was so severely injured that he was unable to seek legal counseling at an earlier time. However, the plaintiffs have failed to set forth any proof of a reasonable excuse for their failure to serve a timely notice, i.e., medical records or a physician’s sworn statement, in support of their claim. Therefore, the plaintiffs’ application must be denied. Altman, Florio and McGinity, JJ., concur.