Santopietro v. City of New York

50 A.D.3d 390, 854 N.Y.S.2d 310

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 3, 2007, which denied petitioner’s application for leave to file a late notice of claim, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion, under General Municipal Law § 50-e (5), in denying petitioners’ motion to file a late notice of claim (see e.g. Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). While the failure to proffer a reasonable excuse for delay in serving a notice of claim is not alone fatal to a motion for leave to file a late notice, plaintiffs also failed to demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay (see General Municipal Law § 50-e [1] [a]; [5]; Matter of Schifano v City of New York, 6 AD3d 259 [2004], lv denied 4 NY3d 703 [2005]; Harris v City of New York, 297 AD 2d 473 [2002], lv denied 99 NY2d 503 [2002]). Concur—Mazzarelli, J.E, Andrias, Gonzalez and Acosta, JJ.