Majority
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim upon the City of New York, the petitioner appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered January 8, 2015, which denied the petition and dismissed the proceeding.
Ordered that the order is affirmed, with costs.
In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant facts, including whether, inter alia, (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (3) the claimant was mentally or physically incapacitated, and (4) the delay in serving the notice of claim would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e [5]; Matter of Mitchell v City of New York, 112 AD3d 940 [2013]; Matter of Destine v City of New York, 111 AD3d 629 [2013]; Matter of Khalid v City of New York, 91 AD3d 779 [2012]).
Moreover, the evidence submitted by the petitioner failed to establish that the City of New York had actual knowledge of the essential facts constituting the aforementioned State law claims within 90 days following their accrual or a reasonable time thereafter (see Williams v Nassau County Med. Ctr., 6 NY3d 531 , 537 [2006]; Matter of Mitchell v City of New York, 112 AD3d 940 [2013]; Matter of Destine v City of New York, 111 AD3d 629 [2013]; Matter of Rivera v City of New York, 88 AD3d 1004 , 1005 [2011]). In addition, the notice of claim served upon the City three months after the 90-day statutory period had elapsed was served too late to provide the City with actual knowledge of the essential facts constituting those claims within a reasonable time after the expiration of the 90-day statutory period (see Matter of Stark v West Hempstead Union Free Sch. Dist., 127 AD3d 765 , 766 [2015]; Matter of Murray v Village of Malverne, 118 AD3d 798 , 799 [2014]; Matter of Valila v Town of Hempstead, 107 AD3d 813 , 814 [2013]). Finally, the petitioner failed to establish that the delay in serving the notice of claim with respect to the State law claims would not substantially prejudice the City in maintaining its defense on the merits with respect to those claims (see Williams v Nassau County Med. Ctr., 6 NY3d at 539 ; Matter of Anderson v New York City Dept. of Educ., 102 AD3d 958 , 960 [2013]; Matter of Khalid v City of New York, 91 AD3d 779 [2012]; Buchanan v Beacon City School Dist., 79 AD3d 961 , 962 [2010]).
That branch of the petition which was for leave to serve a
Hall, J.P., Austin, Sgroi and LaSalle, JJ., concur.
Cases cited
- Mitchell v. City of New York 112 AD3d 940 p. 1282, p. 1283
- Destine v. City of New York 111 AD3d 629 p. 1282, p. 1283
- Khalid v. City of New York 91 AD3d 779 p. 1282, p. 1283
- Valentine v. City of New York 72 AD3d 981 at 982 p. 1283
- Portnov v. City of Glen Cove 50 AD3d 1041 at 1042-1043 p. 1283
- Smith v. Baldwin Union Free School District 63 AD3d 1078 at 1079 p. 1283
- Baglivi v. Town of Southold 301 AD2d 597 at 598 p. 1283
- Williams v. Nassau County Medical Center 6 NY3d 531 at 537 p. 1283
- Rivera v. City of New York 88 AD3d 1004 at 1005 p. 1283
- Stark v. West Hempstead Union Free School District 127 AD3d 765 at 766 p. 1283
- Murray v. Village of Malverne 118 AD3d 798 at 799 p. 1283
- Valila v. Town of Hempstead 107 AD3d 813 at 814 p. 1283
- Buchanan v. Beacon City School District 79 AD3d 961 at 962 p. 1283
- Gorman v. Sachem Central School District 232 AD2d 452 at 453 p. 1284