Rodriguez v. City of New York

86 A.D.2d 533, 446 N.Y.S.2d 50, 1982 N.Y. App. Div. LEXIS 15047

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1982
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Callahan, J.), entered April 29, 1981, denying plaintiff’s motion for leave to file a late notice of claim, affirmed, without costs. The chronology of events is fairly stated in the dissent. However, in order to obtain leave to serve a late notice of claim under subdivision 5 of section 50-e of the General Municipal Law, a party must give a satisfactory explanation for his delay. (Pierce v New York City Housing Auth., 43 AD2d 842.) Assuming that the plaintiff did have some “contact” with the hospital in February of 1980, he fails to give any explanation as to why he waited until February of 1981 before seeking to make a claim. While the plaintiff maintains that the injury to his ankle was very serious, he does not even state that any medical attention was sought during that one-year period. Upon the superficial affidavit submitted by the plaintiff, this court is left to speculate as to exactly what the plaintiff did and to whom he spoke during that period of delay. The plaintiff’s silence on this point is totally unsatisfactory. Moreover, there is no indication in this record to demonstrate that defendants’ agents made any statement that discouraged plaintiff from filing a timely notice of claim and bringing a timely action. Likewise, there is no evidence in the record to conclude that the defendants have not been necessarily prejudiced in their investigation of this case from the plaintiff’s unexplained delay of one year in seeking to make claim. Concur — Murphy, P. J., Sullivan, Lupiano and Bloom, JJ.