Rocco v. New York City Transit Authority

277 A.D.2d 458, 715 N.Y.S.2d 899, 2000 N.Y. App. Div. LEXIS 12352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2000
• Status: Published

Opinion

—In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Queens County (LaTorella, J.), dated July 8, 1999, which denied his motion for leave to serve a late notice of claim, and (2) so much of an order of the same court, dated April 10, 2000, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated July 8, 1999, is dismissed, as that order was superseded by the order made upon reargument; and it is further,

Ordered that the order dated April 10, 2000, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

The petitioner failed to offer a reasonable excuse for his delay in moving for leave to serve a late notice of claim and failed to demonstrate that the respondents had actual notice of his claim within 90 days of the happening of the accident or a reasonable time thereafter. Thus, the Supreme Court providently exercised its discretion in denying his motion for leave to serve a late notice of claim (see, General Municipal Law § 50-e [5]; Matter of Harris v Dormitory Auth., 168 AD2d 560). Mangano, P. J., S. Miller, McGinity, Luciano and Smith, JJ., concur.