Turkenitz v. City of New York

213 A.D.2d 266, 624 N.Y.S.2d 127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered January 6, 1994, which denied plaintiffs motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

Plaintiffs lack of fluency in English and ignorance of the law are not acceptable excuses for failing to serve a timely notice of claim (Matter of Perez v New York City Hous. Auth., 156 AD2d 177), and the excuse that she was incapacitated by the injuries she sustained in the accident is insufficient in the absence of any supporting medical evidence (Matter of Rios v City of New York, 180 AD2d 801). Such medical evidence might also have served to substantiate plaintiff’s claim that the accident occurred on the date given in her motion papers, and not two months earlier given the notice of claim she served without leave, and, in the absence of any other proof in this regard, the IAS Court did not err in refusing to find the later date as a fact. Furthermore, sidewalk and street defects, being transitory in nature, must be promptly investigated lest the passage of time make it impossible to reconstruct the circumstances existing at the time of the accident (see, supra). The photographs of the site plaintiff took five months after the accident did not negate this prejudice. Concur—Murphy, P. J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.