Santopietro v. City of New York

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2008
• Status: Published

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.